Doyle v. Pennsylvania & N.Y. Canal & R.R. Co.

• Decision Date: 17 October 1893
• Citation: 139 N.Y. 637,34 N.E. 1063
• Court: New York Court of Appeals Court of Appeals
• Parties: DOYLE v. PENNSYLVANIA & N. Y. CANAL & RAILROAD CO.

139 N.Y. 637

34 N.E. 1063

DOYLE

v.PENNSYLVANIA & N. Y. CANAL & RAILROAD CO.

Court of Appeals of New York.

Oct. 17, 1893.

Appeal from superior court of Buffalo, general term.

Action by Margaret J. Doyle against the Pennsylvania & New York Canal & Railroad Company for personal injuries. Verdict for plaintiff for $5,000. From an order of the general term affirming, without opinion, an order of the special term setting aside the verdict, and granting a new trial, plaintiff appeals. Reversed.

Laughlin, Ewell & Houpt, (John Laughlin, of counsel,) for appellant.

Bissell, Sicard, Brundage & Bissell, (Frank Brundage, of counsel,) for respondent.

PER CURIAM.

A careful perusal of the record leads us to the conclusion that the trial judge did not err in submitting the questions of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff, to the jury. The defendant's negligence, if any negligence on its part existed, consisted in a want of due caution in the management of its train while crossing Perry street. Its main track was on the north side of Perry street, and passed westerly on an embankment on that side of the street towards the city. But it had constructed a single track across Perry street, which left its main line a short distance west of Peabody street, and, curving southeasterly and crossing the street obliquely, leached the south side of Perry street about 339 feet west of Peabody street. The track across Perry street was substantially on the grade of the street. The company maintained no flagman, and there was no sign indicating a railroad track at that point. The evidence tends to show that a person going easterly from Selkirk street on the south side of Perry street would not discover the existence of this track before reaching it, and, also, that seeing a train coming from the east on the main tracks, on the north side of Perry street, on a dark night, might be misled and not perceive that it diverged from the main track to cross Perry street until it had nearly reached the south side. This would be especially true of a person unacquainted with the locality, and who did not know of the existence of the track crossing Perry street, and who could follow the course of the main line along the embankment on the north side of Perry street. The situation imposed upon the defendant the duty of using care and moving with caution in crossing Perry street. The evidence on the part of the plaintiff is that the train, the movement of which she observed after she was thrown down, was going very fast, and there is evidence on the part of witnesses for the defendant, other than the employes, from which the jury might reasonably infer that the train was moving much faster than four or four and a half miles an hour, which was the rate of speed fixed by the employes on the train. The plaintiff testified that no bell was rung, or whistle sounded, or other signal given from the train of its approach. She was somewhat corroborated on this point; but the engineer and fireman, and perhaps other employes, testified to the continuous ringing of the bell. This was a question for the jury. It further appears from the testimony of the fireman and engineer that they did not see the plaintiff, and did not know until the following day that any one had been struck, although it appeared that a person on the track could have been seen from the engine by a lookout.

We think there was sufficient shown to require the submission of the question of the defendant's negligence to the jury. The contributory negligence of the...