Chrystal v. Troy & B.R. Co.

• Decision Date: 22 March 1887
• Citation: 11 N.E. 380,105 N.Y. 164
• Parties: CHRYSTAL v. TROY & B. R. CO.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 164

11 N.E. 380

CHRYSTAL

v.TROY & B. R. CO.¹

Court of Appeals of New York

March 22, 1887.

Appeal from General Term, Supreme Court, Third Department.

DANFORTH and ANDREWS, JJ., dissenting.

E. L. Fursman, for appellant.

R. A. Parmenter, for appellee.

EARL, J.

This action was commenced to recover for injuries caused to the plaintiff by the defendant carelessly running an engine over him upon its road. It denies that it was guilty of any negligence or fault causing the injury, and alleges that there was negligence on the part of the plaintiff's mother, a widow, which exposed him to the injury which he sustained. The accident happened on the fourth day of September, 1877, and the action was commenced on the second day of February, 1880, and was brought to trial on the twenty-first day of May, 1884. At the time of the accident the plaintiff was a nursing infant 17 months old, and in consequence of his injuries one of his fingers was amputated and also one of his legs above the ankle. The verdict of the jury was for $8,000.

The presence of the plaintiff, unattended, upon the railroad, would, under the circumstances, if unexplained, have been conclusive proof of carelessness and inattention on the part of the mother, and hence it became important for him to show that he strayed upon the railroad track without any culpable neglect on her part. At the place of the accident the railroad runs in a northerly and southerly direction, and was crossed at right angles by Carey avenue, in a sparsely populated portion of the village of Hoosac Falls. The plaintiff resided with his mother on the north side of that avenue, about 80 feet easterly of the railroad, in a house which stood about 12 feet northerly from the line of the avenue. He had been able to walk for only about two months, was fat and chubby, and just before the accident had been playing in the yard in front of the house. His mother, as a witness, for the purpose of exculpating herself from the charge of negligence, gave the following statement of what then took place: She took him up, and held him in her lap, sitting on the front door-steps of the house. Finding that he was sleepy, she went into the house, and sitting in a rocking chair nursed him. Seeing that he was inclined to sleep, she laid him down upon the floor and saw that he was still, and she then put a chair across the open doorway, while she went into another room to fix his cradle. She was gone eight or ten minutes, and when she came back he was gone. The chair across the doorway was undisturbed, so that he must have crawled over the chair or through it in some way, and passed down the steps to the front gate, which was fastened. Under the gate there was a space of about six inches through which he must have crawled, and then he must have passed into the street 80 feet to the railroad, where he was hit by the engine and injured. All this transpired during the eight or ten minutes she was in the adjoining room. When she came out of that room, and commenced looking for him, she saw him on the railroad, and saw the train coming. He had never gone to that place before, and was never known before to crawl under the gate.

The counsel for the defendant contends that this story that this child, just able to walk, after being put to sleep sound, as comes to a tired, well-fed infant, woke up, got through or over the chair, down the steps, under the gate, and down to the railroad track, all within eight or ten minutes, is so incredible, unnatural, and contrary to human experience that the jury could not rely on it as sufficient to show such care of the child on the part of his mother as the law exacts. While this evidence is liable to much of the criticism in which the defendant's counsel indulges, we cannot say that the story, in its essential features, is so impossible or improbable that, as matter of law, the jury could not believe it, and rely upon it. We have no power to weigh the evidence. The general term, however, having power to set aside verdicts which are contrary to the evidence, should not allow one to stand which is based simply upon evidence which may possibly be true.

But we are of opinion that the evidence failed to show any negligence on the part of the defendant. There is no charge that its road-bed or engine, or any of the...