71 N.Y. 228, Dyer v. Erie Railway Co.

Citation:71 N.Y. 228
Party Name:ABRAM DYER, Respondent, v. THE ERIE RAILWAY COMPANY, Appellant.
Case Date:November 13, 1877
Court:New York Court of Appeals
 
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Page 228

71 N.Y. 228

ABRAM DYER, Respondent,

v.

THE ERIE RAILWAY COMPANY, Appellant.

New York Court of Appeal

November 13, 1877

Argued Sept. 20, 1877.

COUNSEL

George Gorham, for appellant. Whether the signal given was sufficient was a question of law. (Bradley v. B. & M. R. Co.,

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2 Cush., 539; Shaw v. B. & W. R. Co., 8 Gray, 45; McGrath v. N.Y. C. & H. R. R. R. Co., 1 N.Y. Supr. Ct. R., 243; Ernst v. N.Y. C. & H. R. R. R. Co., 39 N.Y. 69; Warner v. R. R. Co., 45 Barb., 239; Richardson v. N.Y. C. R. R. Co., 50 N.Y. 846; Subley v. L. & N.W. R. Co., L. R. [ Exch.], 13.) Plaintiff having voluntarily placed himself in the hands of the driver was liable for his negligence. (Thorgood v. Bryan, 8 M. G. & S., 115; Cattlin v. Hills, Id., 123; Brown v. N.Y. C. R. R. Co., 32 N.Y. 597; Beck v. E. R. Co., 6 Rob., 82, 87.)

J. H. Waring, for respondent. Defendant was guilty of negligence in failing to give sufficient signals. (Weber v. N.Y. C. & H. R. R. R. Co., 58 N.Y. 451; Richardson v. N.Y. C. R. R. Co., 45 Id., 846; Eaton v. Erie R. Co., 51 Id., 544.) Plaintiff was not responsible for the contributory negligence of the driver. (Robinson v. N.Y. C. & H. R. R. R. Co., 65 Barb., 146; Metcalf v. Baker, 11 Abb. [ N. S.], 31; Webster v. H. R. R. R. Co., 38 N.Y. 262.) If it appeared that if plaintiff had not jumped from the wagon he would not have been injured, defendant would not be relieved from liability. (Coulter v. Am. M. Un. Ex. Co., 56 N Y., 585; Buel v. N.Y. C. R. R. Co., 31 Id., 214.)

MILLER, J.

The plaintiff received the injuries complained of while crossing defendant's track in a public thoroughfare, in the village of Salamanca. At the time, he was riding by the permission and invitation of one Stimpson, the owner of the horses and wagon driven. A single board was placed upon the wagon, between the forward and hind wheels, Stimpson being near the forward end driving, and the plaintiff near the back end. There was evidence showing that there were buildings near the track which intercepted the view of it, and prevented the plaintiff or Stimpson from seeing a train which had been standing south of the buildings, which at this time had started to back over the crossing, as was claimed, without giving Stimpson or the plaintiff any warning

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of its approach. The horses became frightened by the blowing off of steam of engines in the vicinity, increased their speed, became unmanageable, and the plaintiff was thrown, or jumped from the wagon and was injured by the train which was backing.

The defendant seeks a reversal of the judgment in this action for errors in the instructions given by the judge in his charge to the jury, as well as a refusal to nonsuit the plaintiff. The most serious questions arise upon exceptions to the charge, and these will first be considered. The first one is, that "it was the duty of the defendant, by proper signals, and in a manner that would communicate to the citizen who was about to approach the crossing, that they were approaching, and give this notice in time, so the traveler could seek a place in safety, if he was on foot, and could avoid the danger; and if he had a team attached to a wagon in which he was riding, as in this instance, he would have an opportunity to stop his team in the place of safety."

There can be no serious question that an obligation devolves upon railroad corporations to warn persons who may be passing, whether on foot or in a team, of the approach of trains, so that such persons may use the necessary caution to avoid the danger and keep out of the way of the train. This portion of the charge did not, in any way, require a greater degree of vigilance, or a greater exercise of care than ordinarily devolves upon corporations of this character, and anything less than what was embraced in the proposition laid down, would have been of no avail. It did not assume that proper precautions had not been taken, or proper signals given, or withhold from the jury, a full consideration of that question and the evidence bearing upon the same. It is not enough, in all cases, that the statutory signals have been given to absolve a railroad corporation from the charge of negligence. Other precautions may be required under some circumstances, and there may be negligence which will charge the company besides the omission to sound the whistle or...

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