71 N.Y. 285, Dolan v. Delaware and Hudson Canal Co.

Citation:71 N.Y. 285
Party Name:JOHN DOLAN, Respondent, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Appellant.
Case Date:November 27, 1877
Court:New York Court of Appeals
 
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Page 285

71 N.Y. 285

JOHN DOLAN, Respondent,

v.

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

New York Court of Appeal

November 27, 1877

Argued Nov. 14, 1877.

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Page 287

COUNSEL

Henry Smith, for appellant. Plaintiff was bound to stop a moment, and see why the flagman was not at his post. ( Griffin v. N.Y. C. R. R. Co., 40 N.Y. 34; Wilds v. Rumond, 24 Id., 430; 29 Id., 315.) Plaintiff's statement that he did not hear the bell or see the flagman, did not raise a question of fact as against evidence that the bell was rung and the flagman at his post. ( Calhune v. N.Y. C. & H. R. R. R. Co., 60 N.Y. 133; Havens v. E. R. Co., 41 Id., 296; Eaton v. E. R. Co., 51 Id., 544; Gorton v. E. R. Co., 45 Id., 660; Dascomb v. R. R. Co., 27 Barb., 221.)

Amasa J. Parker, for respondent. The absence of the flagman was a violation of law and evidence of defendant's negligence. (McGrath v. N.Y. C. R. R. Co., N.Y. Ct. App. [ not reported]; Beisiegel v. N.Y. C. R. R. Co., 14 Abb. [ N. S.], 29; Jetter v. N.Y. C. R. R. Co., 2 Abb. Ct. App. Cas., 458; 110 Mass., 136.) The obstructions to the view relieved the plaintiff from the charge of contributory negligence. ( Mackay v. N.Y. C. R. R. Co., 35 N.Y. 75; McGuire v. H. R. R. R. Co., 2 Day, 76.) Plaintiff was not required to stop his horses. ( Beisiegel v. N.Y. C. R. R. Co., 34 N.Y. 621; 47 Id., 402.) Plaintiff was only bound to look for the usual and ordinary signals and evidences of danger. ( Webber v. N.Y. C. R. R. Co., 58 N.Y. 451.)

CHURCH, Ch. J.

Our conclusions in this case are: 1st.That the nonsuit was properly denied. The evidence of an improper rate of speed was slight, but the evidence tended

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to show that the flagman, which the company had uniformly kept at the Orange street crossing, and which was required by the city ordinance, was absent from his post. Irrespective of the effect of an ordinance, negligence cannot be predicated of an omission to keep a flagman; but, when a flagman has been uniformly stationed at a crossing, the negligence of the flagman to give warning and properly discharge his duty, or in absenting himself from his post, is imputable to the company. Nor, as matter of law, could contributory negligence be imputed to the plaintiff. The evidence tended to show that he and...

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