73 N.Y. 468, Dale v. Delaware, Lackawanna & Western Railroad Co.

Citation:73 N.Y. 468
Party Name:GEORGE L. DALE, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.
Case Date:May 21, 1878
Court:New York Court of Appeals
 
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Page 468

73 N.Y. 468

GEORGE L. DALE, Respondent,

v.

THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.

New York Court of Appeal

May 21, 1878

Argued Apr. 2, 1878.

Page 469

COUNSEL

Hamilton Cole, for appellant. The court erred in charging the jury that they might, in determining whether defendant was not guilty of negligence in allowing the old bridge to remain, consider the fact that it had replaced it by a new one of iron and wider. ( Dougan v. Champ. Tr. Co., 56 N.Y. 1; Salters v. D. and H. Co., 3 Hun, 338; King v. N.Y. Cent., 4 Id., 776; Payne v. Troy and B. Co., 9 Id., 526; Sewell v. City of Cohoes, 11 Id., 626; Baird v. Daly, 68 N.Y. 547.) Plaintiff was chargeable with notice of the character and location of the bridge. ( Mersey Dock v. Gibbs, 11 H. of L. Cas., 687; McClurg's Case, 56 Pa., 294, 297, 298; 7 All., 207; 39 Ind., 329; 5 Bush., 1.) The court should have charged as requested, that defendant's agreement or undertaking to carry the plaintiff safely was conditioned upon his keeping himself entirely within the limits of the car intended for and appropriated to passengers. ( Todd v. Old Colony Co., 3 All., 18; 7 Id., 207; I. and C. Co. v. Rutherfurd, 29 Ind., 82; Pitts. and McC. Co. v. McClurg, 56 Pa., 294; Pitts., etc., Co. v. Andrews, 39 Md., 329; L. and N. Co. v. Sickings, 5 Bush., 1; Holbrook v. U and S. Co., 12 N.Y. 236;

Page 470

State v. Grand Trunk Co., 56 Me., 176; Palmer v. Kelly, 56 N.Y. 637; Algur v. Gardner, 54 Id., 364; Rouse v. Lewis, 2 Keyes, 359; Storey v. Brennan, 15 N.Y. 526, 528; Lakey v. Loomis, 2 Hun, 516; Underhill v. Harlem Co., 21 Barb., 489; Brague v. Lord, 67 N.Y. 500; Booth v. B. and A. Co., 67 Id., 593.)The court should have charged that the proof was insufficient to hold the defendant, on the ground that the boards on the side of the bridge were loose so as to be dangerous to passengers. ( Cotton v. Wood, 98 C. L., 566; Banlec v. Harlem Co., 59 N.Y. 366; McCaig v. Erie Co., 8 Hun, 602; Morrison v. N.Y. and N. H. Co., 32 Barb., 574; Lewis v. B. and O. Co., 13 A. L. R. [ N. S.], 286; Fay v. Grimstead, 10 Barb., 321, 322; Underhill v. Harlem Co., 21 Id., 489; Moore v. Erie Co., 7 Lans., 40.) It was error to receive evidence as to what width between the outside of the window and the side of the bridge would constitute a...

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