67 N.Y. 417, Mcgovern v. New York Cent. & H.R.R. Co.

Citation:67 N.Y. 417
Party Name:MICHAEL MCGOVERN, Administrator, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
Case Date:December 05, 1876
Court:New York Court of Appeals
 
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Page 417

67 N.Y. 417

MICHAEL MCGOVERN, Administrator, etc., Respondent,

v.

THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

New York Court of Appeal

December 5, 1876

Argued Nov. 22, 1876.

Page 418

COUNSEL

Martin W. Cooke for the appellant. The motion for a nonsuit should have been granted. (Culhane v. N.Y. C. and H. R. R. R. Co., 60 N.Y. 133-137; Reynolds v. N.Y. C. and H. R. R. R. Co., 58 Id., 248; Warner v. N.Y. C. and H. R. R. R. Co., 44 Id., 466; 2 Redf. R. Cas., 501; Burk v. Broadway, etc., 49 Barb., 529; S. & R. on Neg., § 50 and note; Wilcox v. R., W. and O. R. R. Co., 39 N.Y. 358; Griffin v. N.Y. C. and H. R. R. R. Co., 40 Id., 34.)

J. H. Martindale for the respondent. The deceased was not guilty of contributory negligence. (Reynolds' Case, 58 N.Y. 252; O'Mara's Case, 51 Id., 666; Thurber's Case, 60 Id., 326; Costello's Case, 65 Barb., 101.) It was negligence for defendant to run its engine at the rate it was moving. (Costello's Case, 65 Barb., 101.)

ANDREWS, J.

The defendant, on the trial, contested the right of the plaintiff to recover in both aspects of the case,

Page 419

on the question of negligence. It was claimed that no negligence on the part of the defendant had been shown, and also that there was contributory negligence on the part of the deceased, or at least that it did not affirmatively appear that he was free from fault. A motion for a nonsuit was made on each of these grounds, which was denied. The refusal to nonsuit was proper, unless upon the evidence given it could be adjudged as matter of law that there was a defect in the plaintiff's case, in one or both of the particulars mentioned.

The main facts can be briefly stated. The accident, which resulted in the death of the plaintiff's intestate, was at the John street crossing, in the city of Rochester. The railroad runs east and west, crossing John street at grade by three tracks. On the south-west corner of John street and the railroad there is a house, with a porch extending to within four feet of the south track, and a person passing along the sidewalk, northerly, on the west side of the street, cannot see an engine or train approaching from the west until he has passed this obstruction. The defendant kept a flagman at the crossing to warn passengers when trains were approaching, whose usual position was south of the railroad track and on the east side of John street. The plaintiff's intestate, a lad eight years of age, left his home, south of the railroad, on the morning of the accident, to go to his school, north of the railroad and east of John street, and in company with other children passed northerly in his usual course, on the west side of the street, to near the railroad track. At this time a freight train, with an engine at both ends, each having a bell which was ringing, moved across John street, westerly, on the second track of the railroad. At the same time an engine was backing down from the west on the south track, also ringing a bell. Just before the freight train reached the crossing, the flagman, as the evidence on the part of plaintiff tended to show, stood at the flag-house without his flag, and...

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