75 N.Y. 273, Salter v. Utica & B. River R. Co.

Citation:75 N.Y. 273
Party Name:ELIZABETH S. SALTER, Administratrix, etc., Respondent, v. UTICA AND BLACK RIVER RAILROAD COMPANY, Appellant.
Case Date:November 26, 1878
Court:New York Court of Appeals
 
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Page 273

75 N.Y. 273

ELIZABETH S. SALTER, Administratrix, etc., Respondent,

v.

UTICA AND BLACK RIVER RAILROAD COMPANY, Appellant.

New York Court of Appeal

November 26, 1878

Argued Nov. 11, 1878.

Page 274

COUNSEL

Francis Kernan and E. A. Graham, for appellant. It cannot, in the absence of evidence, be presumed that the

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deceased was free from fault. ( Reynolds v. N.Y. C. R. R., 58 N.Y. 248, 250, 252; Wild v. H. R. R. R. Co., Id., 430-432; Warner v. N.Y. C. R. R., Id., 470, 471.)The deceased was bound in approaching the crossing to make vigilant use of his eyes and ears to ascertain if a train was approaching, and if by doing so he could have avoided the collision, plaintiff cannot recover. ( Wilcox v. Rome, etc., R. R., 39 N.Y. 358, 366, 367; Davis v. N.Y. C. R. R., 47 Id., 400; Wilds v. Hud. R. R., 24 Id., 431; Mitchell v. N.Y. C. R. R., 64 Id, 655; McGrath v. N.Y. C. and H. R. R. Co., 59 Id., 468-471; Railway v. Houston, 95 U.S. R., 697; Haslan v. St. Louis, etc., R. R. Co., 64 Mo., 480, Warner v. N.Y. C. R. R. Co., 44 N.Y. 465-469-470.) If the deceased saw the train and thought he could recover and attempted to cross the track before it reached the crossing a recovery cannot be had. ( Warner v. N.Y. C. R. R. Co., 44 N.Y. 465, 470.) If the mode in which the deceased was dressed prevented his hearing the train that did not relieve from the consequences of contributory negligence. ( Salter v. Utica and B. R. R. R. Co., 59 N.Y. 632; Wilcox v. Rome and Watertown R. R., 39 Id., 358, 367; Mitchell v. N.Y. C. R. R., 64 Id., 655.) The deceased was wanting in due care in not stopping his team before driving on to the railroad track and looking and listening for an approaching train. ( Penn. R. R. Co. v. Beal, 73 Penn., 12; 23 Smith, 504; Wilds v. Hud. R. R. Co., 24 N.Y. 430; Wilcox v. Rome and Watertown R. R., 39 Id., 358; Davis v. N.Y. C. R. R., 47 Id., 400.) The fact that the train was a few minutes late or was moving faster than was claimed did not relieve the deceased from the consequences of want of due care. ( Wilcox v. R. and W. R. R. Co., 39 N.Y. 358, 367; Warner v. N.Y. C. R. R. Co., 44 Id., 465, 469, 470.) The deceased was bound to use his eyes and ears to ascertain the approach of the train although the bell was not rung. ( Ernst v. H. R. R. R. Co., 39 N.Y. 61; Wilcox v. Rome, etc., R. R. Co., Id., 358; Davis v. H. R. R. R. Co., 47 Id., 400-402; R. R. Co. v. Houston, 95 U.S. R., 697.) It was the duty of the deceased

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to approach the crossing at such speed and have his team under such control that he could have stopped or turned around when he saw the train approaching. ( Wilds v. H. R. R. R. Co., 24 N.Y. 430; Wilcox v. Rome, etc., R. R. Co., 39 Id., 358, 367; Dows v. N.Y. C. R. R. Co., 47 Id., 400; Penn. R. R. Co. v. Beale, 73 Penn., 504.)

F. W. Hubbard, for respondent. While the deceased was bound to exercise vigilance to avoid accident, the extent of such vigilance and his culpability must be measured somewhat by defendant's negligence. ( Weber v. N.Y. C. R. R. Co., 58 N.Y. 454; Contl. Im. Co. v. Stead, 5 N.Y. Wkly. Dig., 585; Ernst v. N.Y. C. R. R. Co., 35 N.Y. 9.) The deceased was not bound to stop and reconnoitre before crossing defendant's track. (35 N.Y. 10; Renwick v. N.Y. C. R. R. Co., 36 Id., 134; Mills v. Smith, 8 Wal., 27; Hagan v. Domes. Sewing Machine Co., 9 Hun, 73.)

MILLER, J.

There was, we think, sufficient evidence of negligence of the defendant, upon the trial to warrant the submission of that question to the consideration of the jury; and the judge committed no error in refusing to nonsuit upon any such ground. A more serious question arises, in regard to the contributory negligence of the deceased, and whether the evidence was sufficient to authorize the...

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