La Goy v. Dir. Gen. of Railroads

Citation231 N.Y. 191,131 N.E. 886
PartiesLA GOY v. DIRECTOR GENERAL OF RAILROADS.
Decision Date10 May 1921
CourtNew York Court of Appeals
OPINION TEXT STARTS HERE

Action by Edward La Goy as administrator of the estate of Nelson La Goy, deceased, against the Director General of Railroads. From a judgment of the Appellate Division of the Supreme Court (191 App. Div. 680,181 N. Y. Supp. 842), entered upon an order reversing a judgment of nonsuit entered by direction of the court at the Clinton Trial Term, and granting a new trial, defendant appeals, but stipulates that upon affirmance judgment absolute may be rendered against him in favor of the plaintiff.

Judgment of Appellate Division reversed, and that of the Trial Term affirmed.

Hogan, Cardozo, and Crane, JJ., dissent.

Appeal from Supreme Court, Appellate Division, Third Department.

John M. Cantwell, of Malone, and E. W. Lawrence, of Richland, Vt., for appellant.

John E. Judge, of Plattsburgh, for respondent.

CHASE, J.

The plaintiff's intestate was killed on May 6, 1919, while riding on a motor truck which was run over by an engine and tender of the Rutland Railroad Company at a grade crossing at Irona, Clinton county. The railroad was at the time controlled, managed, and operated by the defendant. The record discloses that the defendant was guilty of negligence because of running the engine at a high rate of speed without blowing a whistle or ringing a bell to give notice of its approach at the Irona crossing.

[1] We are of the opinion that the trial court was right in holding as a matter of law that the plaintiff's intestate was guilty of contributory negligence that materially contributed to his death. It is urged that the complaint is sufficient to charge the defendant with willful negligence and assault. Even if the respondent is right in that claim, the evidence wholly fails to sustain such contention. We will refer to the facts, assuming that the complaint alleges a cause of action to recover damages for intestate's death by reason of the defendant's negligence.

The railroad station at Irona runs east and west. There is a highway on the north side of the right of way but a short distance from it, which runs easterly and westerly. A road used for many years by the public runs on an up grade for 50 feet or more from such highway to and over the Irona crossing. The building occupied as a depot at Irona is on the south side of the track immediately at the left of the crossing, and there is a general store at the right of the crossing and about 39 feet south of the track. Standing at the crossing one can see an engine coming on the track from the west for about a mile. At about 43 feet north from the crossing the view is partially obstructed by a milk station building and platform, but one can there see an engine westerly on the track for about 900 feet.

The intestate was a young man who had commenced an employment at the creamery that day, and had spent the afternoon with another employee in becoming familiar with a truck that he was to drive the next day and in learning the location of the places from which he was to obtain the cream for his employers. The two had returned with the truck to the creamery, which is 460 feet northwesterly from the crossing. It was about 5 o'clock in the afternoon of a clear day. A few minutes before the accident, a man, about 40 or 50 rods from the crossing, going westerly with a team and heavy wagon, heard the engine coming when it was about a mile away. He had previously seen smoke coming from the railroad right of way. At the time of hearing the engine he saw the intestate and the driver of the truck at the creamery. At about the same time a young man was driving a team attached to a heavy wagon easterly nearly opposite the crossing. The truck with the intestate and driver passed this young man and turned towards the crossing, and soon afterwards the collision occurred.

A young man employed in the store mentioned was engaged in front thereof, and between it and the crossing, about two or three minutes before the accident. He then saw the engine coming about a mile...

To continue reading

Request your trial
12 cases
  • Gulf, M. & N. R. Co. v. Brown
    • United States
    • United States State Supreme Court of Mississippi
    • February 23, 1925
    ...... . . Division B. . . 1. RAILROADS. Instruction on burden of proof held error. . . In a. suit for damages for a ......
  • O'Brien v. Luckenbach S.S. Co., Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 25, 1923
    ...... damages for causing death. La Goy, Administrator, v. Director General of Railroads, 231 N.Y. 191, 131 N.E. 886; McKay v. Syracuse Rapid Transit Ry. Co., 208. N.Y. 359, 101 N.E. ......
  • Boscarello v. N.Y., N. H. & H. R. Co.
    • United States
    • Supreme Court of Connecticut
    • November 7, 1930
    ...of the many cases in which, in analogous situations, other courts have reached like conclusions. La Goy v. Director-General of Railroads, 231 N. Y. 191, 131 N. E. 886; Fogg v. New York, N. H. & H. R. Co., 223 Mass. 444, 111 N. E. 960; Noble v. Chicago, Milwaukee & St. Paul R. Co. (C. C. A.)......
  • Delaware & Hudson Co. v. Nahas, 3386.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 26, 1926
    ......Lehigh Valley R. Co., 238 N. Y. 233, 144 N. E. 512.         Coming to the railroads, the Penal Law of New York (Consol. Laws, c. 40), by Section 1985, prescribes that an "engineer, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT