92 N.Y. 289, Barry v. New York Cent. and Hudson River Railroad Co.

Citation:92 N.Y. 289
Party Name:JEREMIAH BARRY, Administrator, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
Case Date:April 24, 1883
Court:New York Court of Appeals
 
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Page 289

92 N.Y. 289

JEREMIAH BARRY, Administrator, etc., Respondent,

v.

THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

New York Court of Appeal

April 24, 1883

Argued Mar. 27, 1883.

Page 290

COUNSEL

Esek Cowen for appellant. As the deceased was, when killed, on defendant's land, by its license implied from the habit of workmen and others to cross its tracks at that spot, it owed him no duty except to do him no intentional harm, and it was error to hold that defendant was bound to give the deceased warning of the approach of its train. (Nicholson v. Erie R. Co., 41 N.Y. 525; Sutton v. N.Y. C. & H. R. R. R., 66 Id. 243; P. & R. Co. v. Hummel, 44 Penn. St. 375; Matze v. N.Y. C. & H. R. R. R., 1 Hun, 417; Harty v. C. R. of N. J., 42 N.Y. 468.) It makes no difference in this respect that the deceased was of tender years. (Penn. R. Co. v. Lewis, 79 Penn. St. 33-43; P. & R. v. Hummel, 44 Id. 379; Hornsberger v. Second Ave. R. Co., 1 Keyes, 570.) The deceased was guilty of contributing negligence, and for this reason the nonsuit should have been granted. (Haight v. N.Y. C. & H. R. R. R., 7 Lans. 11; Davis v. N.Y. C. & H. R. R. R., 47 N.Y. 400; Barker v. Savage, 45 Id. 191; Gorton v. Erie R. W., Id. 660; Wilcox v. Rome, W. & O. R. R., 39 Id. 358; Salter v. Utica & B. R. R., 75 Id. 273; Day v. Flushing, etc., R. R.,

Page 291

id. 610; Mitchell v. N.Y. C. & H. R. R. R., 2 Hun, 535.)The burden of proof was on plaintiff to show at least that he employed such means as a child of ten years might be expected to employ to insure his own safety. (Reynolds v. N.Y. C. & H. R. R. R., 53 N.Y. 248; Cordell v. N.Y. C. & H. R. R. R., 75 Id. 330; Hale v. Smith, 78 Id. 480, Hart, Admr., v. Hudson River Bridge Co., 84 Id. 56.) The court erred in refusing to charge as requested, that if the bell was rung the defendant was not bound to give any other warning. (Grippen v. N.Y. C. R. R. Co., 40 N.Y. 34.)

Martin I. Townsend for respondent. Plaintiff's intestate was, at the time he was injured, where he had a right to be. (Sibley v. Ellis, 11 Gray, 417; Washburn on Easements, 67, margin; Id. 73, 74, margin 76.) The plaintiff's intestate had the right to require the defendant, its agents and servants, to use all reasonable care and diligence proportioned to the magnitude of the danger to avoid doing him an injury, and if it has failed and he has been injured without his own fault which contributed to the injury, the defendant must respond. (Fero v. Buffalo R. R. Co., 22 N.Y. 209; Johnson v. Hudson R. R. R. Co., 20 Id. 65; Beiseigel v. N.Y. C. R. R. Co., 40 Id. 28; McDermott v. N.Y. C. & H. R. R. R. Co., 16 W'kly Dig. 57.) The measure and degree of care, the omission of which would constitute negligence, is to...

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