Cullen v. Delaware & H. Canal Co.

• Decision Date: 04 June 1889
• Citation: 113 N.Y. 667,21 N.E. 716
• Parties: CULLEN v. DELAWARE & H. CANAL CO.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 667

21 N.E. 716

CULLEN

v.DELAWARE & H. CANAL CO.¹

Court of Appeals of New York.

June 4, 1889.

Appeal from supreme court, general term, Third department.

Action by Mary Cullen, administratrix of Michael Cullen, deceased, against the Delaware & Hudson Canal Company, to recover damages for alleged negligence of defendant causing the death of plaintiff's intestate. The general term set aside a judgment of nonsuit entered by the circuit court, and granted a new trial. Defendant appeals.

DANFORTH, J., dissenting.

Edwin Young, for appellant.

A. D. Wait, for respondent.

ANDREWS, J.

We are of opinion that the plaintiff not only failed to meet the burden resting upon her to show directly or by inference that the death of the intestate was caused solely by the negligence of the defendant, but that the evidence affirmatively shows that he omitted the duty of looking or listening before crossing the track, to ascertain whether an engine was approaching, and that this omission on his part contributed to his death. The allegation of negligence on the part of the defendant was fully established. The engine was backing from the south at a high rate of speed, and approached a dangerous crossing, without ringing the bell, or sounding the whistle, or giving any notice. The difficulty in the plaintiff's case, as has been stated, is upon the point of the intestate's negligence. The day of the accident was Sunday. The deceased left his house at about 9 in the morning, to attend church at Middle Granville, a place north and west of the crossing. He drove a young horse attached to a buckboard wagon, and was alone. He drove first to Granville,-a point about half a mile south of the crossing,-and then went northerly on the highway to the crossing, on his way to Middle Granville. The highway from Granville to the crossing runs nearly parallel with the railroad, but gradually approaches the track, and crosses it in a northerly direction at an acute angle. The highway for most of the distance is several feet above the railroad, and at points between Granville and the crossing a traveler on the highway could see the track, but for the greater part of the distance the view is obstructed by trees and house, and the bank under which the railroad runs. The highway, as it approaches the crossing, is carried over a hill or elevation, and, at a point eight or ten rods south of the crossing, descends to the level of the railroad track. Three witnesses saw the occurrence. They were called by the plaintiff, and they substantially agree in their narrative. They rode together from Granville in a wagon, following the intestate, and were in sight of him all the way to the crossing, and from two to six rods behind him. The intestate drove from Granville to the crossing at the rate of not less than six miles an hour, keeping a uniform and steady gait, neither checking nor accelerating at any point the speed of his horse. When these witnesses reached the top of the hill ...