64 N.Y. 524, Massoth v. Delaware & Hudson Canal Co.

Citation:64 N.Y. 524
Party Name:JULIA ANN MASSOTH, Administratrix, etc., Respondent, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Appellant.
Case Date:April 04, 1876
Court:New York Court of Appeals
 
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64 N.Y. 524

JULIA ANN MASSOTH, Administratrix, etc., Respondent,

v.

THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Appellant.

New York Court of Appeal

April 4, 1876

Argued Mar. 23, 1876.

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COUNSEL

Henry Smith for the appellant. As there was no evidence that deceased either looked or listened, or that he did any thing to guard against the dangers of the crossing, it will be presumed that he did nothing. (Wilcox v. R. and W. R. R. Co., 39 N.Y. 358.) The driver had no right to assume that the train would be run at a rate of speed in obedience to the city ordinance. (Calligan v. N.Y. C. and H. R. R. R. Co., 59 N.Y. 651.) Both Massoth and Smith were guilty of negligence. (Wilds v. H. R. R. R. Co., 29 N.Y. 325; Baxter v. T. and B. R. R. Co., 41 Id., 503; McCall v. N.Y. C. R. R. Co., 54 Id., 642; Grippen v. N.Y. C. R. R. Co., 40 Id., 44; Havens v. Erie R. Co., 41 Id., 296; Wilcox v. R. and W. R. R. Co., 39 Id., 358; Beiseigel v. N.Y. C. R. R. Co., 14 Abb. [ N. S.], 32; Reynold v. N.Y. C. R. R. Co., 58 N.Y. 248; Weber v. N.Y. C. R. R. Co., Id., 451; Gorton v. Erie R. Co., 45 Id., 660.) The judge erred in charging the jury, that if defendant ran its train at a greater rate of speed than allowed by the city ordinance it was negligence per se. (Brown v. B. and S. L. R. R. Co., 22 N.Y. 191, 198; Cook v. N.Y. C. R. R. Co., 5 Lans., 404; Beiseigel v. N.Y. C. R. R. Co., 14 Abb. [ N. S.], 35; Jelter v. N.Y. and H. R. R. Co., 2 Keyes, 154; McGrath v. N.Y. C. and H. R. R. R. Co., MSS. op. Ct. Apps.; Allis v. Leonard, 58 N.Y. 288.) It was error to charge the jury that in the absence of any evidence upon the subject it was to be presumed that Massoth did not look out for the train. (Wilcox v. R. and W. R. R. Co., 39 N.Y. 358; Potter v. Chadsey, 16 Abb. Pr., 146.)

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Amasa J. Parker for the respondent. The city ordinance, as to the speed of trains, was obligatory upon defendant, and it was negligence to disregard it. (Beiseigel v. N.Y. C. R. R. Co., 14 Abb. Pr. [N. S.], 29; Telter v. Harlem R. R. Co., 2 Abb. Ct. App. Dec., 458; 111 Mass., 136; McGrath v. N.Y. C. R. R. Co., MSS. op. Ct. Apps.; N.Y. Ins. Co. v. Walden, 12 J. R., 519; 5 N.Y. 160; Stettiner v. Granite Co., 5 Duer., 599; Althof v. Wolf, 2 Hilt., 345; Bruce v. Westervelt, 2 E. D. S., 441.) Whether the deceased was guilty of contributory negligence was a question of fact. (Beiseigel v. N.Y. C. R. R. Co., 34 N.Y. 624; 47 Id., 402; 46 Barb., 270; 18 How. Pr., 165; 19 N.Y. 341; 32 Id., 601; Filer v. N.Y. C. R. R. Co., 49 Id., 47; Weber v. N.Y. C. R. R. Co., 58 Id., 451; Hackford v. N.Y. C. R. R. Co., 53 Id., 654; Spooner v. Bklyn. City R. R. Co., 54 Id., 730; Acker v. Lansing, 48 How. Pr., 384; Mowry v. Cent. City, 8 Alb. L. J., 125; Sheehan v. Edgar, Id., 189; Sherwood v. Merc. Co., 5 Hun, 115.) The driver had a right to suppose the train would not run faster than the limit allowed by law. (Weber v. N.Y. C. R. R. Co., 58 N.Y. 451; Jelter v. N.Y. C. R. R. Co., 2 Abb. Ct. App. Dec., 462.)

ALLEN, J.

The instructions of the learned judge to the jury, in respect to the effect of the negligence of the intestate, or of Smith, his employer, contributing to the accident, were quite as favorable to the defendant as could be claimed in its behalf. The charge was very distinct, not only that any neglect of the deceased in looking for and avoiding collision with the cars of the defendant would defeat the action, but that the neglect and omission of Smith, the owner and driver of the team, in whose service the deceased was at the time, would have the like effect; that both were bound to see, if they could, the approaching train; that they were bound to look, and if by looking they could have seen the approaching train, they were bound to stop before reaching the track. The charge was, that the negligence of Smith was attributable

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to the deceased, under the circumstances of the case, and that any negligence upon his part, which contributed to the injury, would defeat the present action as effectually as would like negligence upon the part of the deceased. Of these instructions the defendant had no right to complain. Were it necessary to pass upon the question, I should hesitate, as did the learned judge upon the trial, in holding that the consequence of Smith's negligence could be visited upon the plaintiff and defeat the action, but it is not necessary to consider it.

The question of contributory negligence in cases of this character is ordinarily one of fact for the jury. It depends usually upon a variety of circumstances, and upon inferences from the facts proved, calling for the exercise of practical knowledge and experience, and is peculiarly within the province of a jury of twelve men. It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence, that the party injured has, by his own acts or neglect, contributed to the injury, that the court can take the case from the jury and nonsuit the plaintiff. (Lane v. The Atlantic Works, 111 Mass., 136; Weber v. The N.Y. C. and H. R. R. R. Co., 58 N.Y. 451; Davis v. The Same, 47 Id., 400; Hackford v. The Same, 53 Id., 654.)The instances in which nonsuits have been sustained by reason of the contributory negligence of the plaintiff, or the party sustaining injury, have been exceptional cases in which the court has adjudged that such negligence was conclusively established by evidence which left nothing, either of inference or of fact, in doubt or to be settled by a jury. (Reynolds v. N.Y. C. and H. R. R. R. Co., 58 N.Y. 248; Gorton v. The Erie R. Co., 45 Id., 660.) The judge properly refused to charge as requested, that there being no evidence affirmatively showing that the deceased either looked or listened, or did any thing to guard against the dangers of the crossing, it was to be presumed that he did not look and was negligent. The case of Wilcox v. The Rome and Watertown Railroad Company (39 N.Y. 358), relied upon by the appellant's counsel to

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sustain his exception to this refusal, only decides that, under the circumstances of that case, it was a fair and reasonable presumption of fact that the plaintiff did not look. The circumstances of this case are entirely unlike those in the case cited. Here there were obstacles to...

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