75 N.Y. 320, Voak v. Northern Cent. Ry. Co.

Citation:75 N.Y. 320
Party Name:LUCRETIA VOAK, Respondent, v. THE NORTHERN CENTRAL RAILWAY COMPANY, Appellant.
Case Date:November 26, 1878
Court:New York Court of Appeals
 
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Page 320

75 N.Y. 320

LUCRETIA VOAK, Respondent,

v.

THE NORTHERN CENTRAL RAILWAY COMPANY, Appellant.

New York Court of Appeal

November 26, 1878

Argued Nov. 18, 1878.

Page 321

COUNSEL

Geo. M. Diven, for appellant. Defendant had a right to sound its whistle in the lawful operation of its road, and when properly sounded is not liable for injuries occasioned by or to animals frightened thereby. (Wharton on Neg. [ 2d ed.], § 836; Phil. R. R. v. Stinger, 78 Penn., 219; Flint v. R. R., 110 Mass., 222.)

M. J. Sunderlin, for respondent. The neglect to give the statutory signal was negligence on the part of defendant. (Laws 1854, chap. 282, § 7; Renwick v. N.Y. C. R. R. Co., 36 N.Y. 132; People v. N.Y. C. R. R. Co., 25 Barb., 199-203; Harty v. Cent. R. R. Co. of N. J., 42 N.Y. 468, 471.) Plaintiff was not guilty of contributory negligence. (36 N.Y. 132; 25 Barb., 199; 42 N.Y. 471; Beiseigel v. N.Y. C. and H. R. R. R. Co., 34 Id., 622.) Defendant is liable for injuries occasioned by the fright of an animal at seeing a passing train when the statutory signals

Page 322

are omitted and the traveler has no opportunity of placing his team in safety. (25 Barb., 199; 42 N.Y. 471; Borst v. L. S. and M. So. R. Co., 4 Hun, 346; 66 N.Y. 639.) The question of contributory negligence was one for the jury. ( Weber v. N.Y. C. and H. R. R. R. Co., Ct. App., Oct. 6, 1876.) The question of negligence was properly submitted to the jury. ( Earnst v. H. R. R. R. Co., 35 N.Y. 9; 39 Id., 61, 64, 65; 34 Id., 622.)

EARL, J.

By the Law of 1854, chapter 282, section 7, it is provided that where a railroad shall cross any traveled public road or street, on the same level with the railroad, the engine bell shall be rung, or whistle sounded, at least eighty rods from the crossing, and that the bell shall be kept ringing, or that the whistle shall be sounded at intervals until the engine shall have crossed the road, and for neglect to comply with these requirements the railroad company is made liable for all damage sustained by any person by reason of the neglect.

The purpose of this provision is the protection of persons actually crossing a railroad track, and also of persons approaching such a track. ( The People v. N.Y. C.R.R. Co., 25 Barb., 199; Harty v. Cent. R. R. Co. of N. J., 42 N.Y. 471.) The warning is required to be given so that all...

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