Daniels v. Staten Island Rapid Transit R. Co.

• Decision Date: 27 January 1891
• Citation: 125 N.Y. 407,26 N.E. 466
• Parties: DANIELS v. STATEN ISLAND RAPID TRANSIT R. CO.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 407

26 N.E. 466

DANIELS

v.STATEN ISLAND RAPID TRANSIT R. CO.

Court of Appeals of New York.

Jan. 27, 1891.

Appeal from supreme court, general term, second department.

Albert B. Boardman, for appellant.

Sidney F. Rawson, for respondent.

PER CURIAM.

We think the plaintiff failed to maintain her action, both in respect of the negligence of the defendant and the freedom of the intestate from contributory negligence. No negligence can be imputed to the defendant by reason of the speed of the train, nor from its omission to maintain gates at the crossing, nor from the fact that there were not two flagmen instead of one, nor by reason of any negligence of the flagman in failing to warn the deceased of the impending danger. It was not shown that the train was running at excessive speed. There was no duty resting on the defendant to have gates at the Maple-Avenue crossing in the village. It had been requested by the village authorities to erect them; but this imposed no duty until an order of the supreme court had been obtained upon their application requiring gates to be maintained. Upon such application it is discretionary with the court to ‘order that a flagman be stationed at such point, or that gates shall be erected.’ Chapter 439, Laws 1884, § 3. The defendant did keep a flagman at the crossing, and when he observed the deceased approaching the track from the south, he shouted to him that another train was approaching on the north track, but unfortunately the deceased was deaf, and probably did not hear the warning. The flagman apparently did his whole duty. The only omission which can be charged to the defendant in the management of the train was the failure to have the head-light on the engine of the west-bound train, which struck and killed the plaintiff's intestate, lighted, or, rather, in having the light turned so low as practically to make the condition the same as if unlighted. The accident occurred November 3, 1888, at about 38 minutes after 5 o'clock in the afternoon. The jury would have been authorized to find that the omission of the defendant to have a head-light fully lighted at this time was the omission of due and reasonable care. The time was between ‘dark and light,’ as one witness says, and, ‘it was pretty dark,’ is the language of another witness. The head-light on the down-bound train, which passed the crossing on the south track a few seconds before the up-bound train, which struck the deceased, was lighted, and this was evidence that the time had arrived for lighting the head-light. But the evidence discloses no relation between the omission to light the head-light and the happening of the...