Hunter v. New York, Ontario and Western Railroad Co. (State Report Title: Hunter v. New York, Ontario and Western Railroad Co.)

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: BROWN
• Citation: Hunter v. New York, O.&W. Ry. Co., 116 N.Y. 615, 23 N.E. 9 (N.Y. 1889)
• Decision Date: 03 December 1889
• Parties: CHARLES H. HUNTER, Respondent, v. THE NEW YORK, ONTARIO AND WESTERN RAILROAD COMPANY, Appellant.

116 N.Y. 615

23 N.E. 9

HUNTER

v.NEW YORK, O. & W. RY. CO.^*1

Court of Appeals of New York, Second Division.

Dec. 3, 1889.

Appeal from supreme court, general term, second department.

Action by Charles H. Hunter against the New York, Ontario & Western Railway Company for personal injuries received by him while in defendant's service. Judgment for plaintiff affirmed by the general term. Defendant appeals.

BRADLEY and VANN, JJ., dissenting.

William Van Amee, for appellant.

T. A. Read, for respondent.

BROWN, J.

Assuming that the plaintiff was struck upon the head by the brick arch within the tunnel, and that he was, as a result of that blow, thrown from the cars, and injured, I think there was ample evidence for the jury to determine that the defendant was guilty of neglect producing the accident, and that the plaintiff was free from carelessness contributing to it. The jury were warranted in finding that the only notice that the plaintiff had of the existence of the arch was that received from the tell-tale. This was located about 200 feet west of the west entrance of the tunnel. It served as a warning of the approach to the tunnel, but it gave no notice of the obstruction within the tunnel. A person receiving its warning, and noticing the height of the tunnel, might naturally suppose that the height at the entrance would be maintained throughout its length; and, if the height was at any point reduced, that notice of that fact would be given. Relying, therefore, upon what would be apparent to his observation, he was exposed to a danger of which he had no notice or information. The defendant evidently perceived the weakness of this part of its case, and gave evidence of actual notice of the existence of the arch to plaintiff, but upon that question the verdict of the jury is in accord with the plaintiff's testimony. The plaintiff also testified that he was instructed to ride upon the top of the cars at places where it might be necessary to apply the brakes. He was approaching such a point on the road when the accident happened; and it was a fact for the jury to determine whether, in going upon the top of the car at the time he did, he was guilty of any negligence. Certainly, if he had a right to assume, as we think he had, in the absence of notice as to the existence of the arch, that there was room in the tunnel to maintain a standing position, he would not necessarily be careless in occupying such a position on the car near his post of duty. The difficult question in the case is to reconcile the plaintiff's theory of the accident with the evidence. It appears that the tunnel at the west entrance was 20 feet high. Two hundred feet from the entrance the brick arch began, and continued for a distance of 85 feet. It reduced the height of the tunnel to 15 feet 9 inches, measured from the rail. The plaintiff testified that he left the engine and went on the top of a box-car, and sat down. His exact words are: ‘I was sitting down on the box-car,-on the head box-car,-where the brake was. I went out on the box-car and sat down, and that is the last I remember.’ This car was identified and proven by a witness called by plaintiff to have been 11 feet 2 inches high from the rail to the foot-board that the men walk on, in the center of the roof. There was, therefore, a space of 4 feet and 7 inches between the top of the car, where plaintiff was sitting, and the bottom of the arch. There was a cut or gash on plaintiff's forehead which, it is claimed, he received by coming in contact with the arch, so that his head, to have received a blow at that point, must have been at least 4 feet 8 inches above the foot-board on the top of the car. The plaintiff's counsel, in his brief, has endeavored to show the space between the car and the arch to have been much less; but the measurements appear, without contradiction, to be those I have stated. The theory of the plaintiff's case was that he was rendered unconscious by a blow received on his head, from coming in contract with the arch, and that he was carried by the train to a point about 300 feet east of the east end of the arch, where he fell from the car, and was run over, and his foot crushed. That he might have been carried to the point where he was found is not improbable; but that he could have received a blow on the head from the arch while sitting upon the top of the car would appear to be physically impossible.

There was no evidence given on the trial as to the plaintiff's size or height, and the argument is now made that as the jury saw him, and could therefore judge of his size, it must be assumed that it was not impossible for his head to have reached as high as the arch; and the learned judge who presidedat the trial appears to have submitted this question to the jury, saying: ‘If the plaintiff was sitting down, it is for you to say whether his head would reach to that height.’ The verdict of the jury rests upon an affirmative answer to this question; and we are now called upon to say whether we will accept that finding, and sustain the judgment, or whether we will take judicial notice of the height of the human body, and the measurements of its separate parts, and, so taking notice of those facts, reverse a judgment that is based upon a finding clearly contrary to the laws of nature. No exception was taken to the charge; but, by an exception to the denial of the motion to dismiss the complaint, made at the close of the plaintiff's case, and renewed at the close of the testimony, on the ground that the facts proven were insufficient to constitute a cause of action, the question is properly before this court. Courts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved, and the apparent justice of the case. The rule that permits a court to do so is of practical value in the law of appeal, where the evidence is clearly insufficient to support the judgment. In such case, judicial notice may be taken of facts which are a part of the general knowledge of the country, and which are generally known, and have been duly authenticated in repositories of facts, open to all; and especially so of facts of official, scientific, or historical character. Thus, it has been held that courts will take judicial notice of matters of public history, such as the existence of the late civil war, and the particular acts which led to it, (Swinnerton v. Insurance Co., 37 N. Y. 174;Woods v. Wilder, ...