Kelley v. New York State Rys.
| Decision Date | 11 February 1913 |
| Citation | 207 N.Y. 342,100 N.E. 1115 |
| Parties | KELLEY v. NEW YORK STATE RYS. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Action by John L. Kelley against the New York State Railways. From a judgment of the Appellate Division (145 App. Div. 902,129 N. Y. Supp. 1130) affirming a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.
W. A. Matson, of Rochester, for appellant.
F. T. Miller, of Syracuse, for respondent.
The plaintiff in this action has recovered judgment against the defendant for personal injuries sustained, as it is alleged and found, through the defendant's negligence.
The plaintiff, when injured, was running a steam roller on the highway. The place was not within the limits of an incorporated village or city. The time was a little after sunset or nighttime, as defined by the Statutory Construction Law. The plaintiff was on the south side of the highway, going west. He saw one of the defendant's cars approaching from the west, about half a mile distant. He attempted to run the roller across the tracks to the north side of the highway, for the reason, as he says, that there was more room on that side to pass the car. The left hind wheel of the roller stuck on the farther rail of the track, and a collision occurred. The car, running at a high rate of speed, struck the roller, causing the injuries to the plaintiff for which recovery has been had. The car carried 35 passengers, but no injury resulted to them, or to any person on the car.
The only question to be considered is the application to the case of certain sections of the Highway Law and of the Penal Law, which the plaintiff failed to observe.
Section 329 of the Highway Law (Cons. Laws, c. 25) reads as follows: ‘The owner of a steam roller, steam traction engine or any other machinery, either propelled or driven by steam, his servant or agent shall not allow, permit or use the same, to pass over, through or upon any public highway or street except upon railroad tracks, unless such owner or his agents or servants shall send before the same a person of mature age, at least one-eighth of a mile in advance, who shall notify and warn persons traveling and using such highway or street with horses or other domestic animals, of the approach thereof, and at night such person shall carry a red light, except in incorporated villages and cities.’
The court charged the jury that the statute did not seem to have any application, and ‘for that reason it does not enter into your consideration of this case.’ To this part of the charge the defendant excepted.
Section 1425 of the Penal Law (Cons. Laws, c. 40) subd. 11, reads substantially as follows: ‘A person who willfully * * * drives * * * a vehicle or engine propelled by steam, except upon a railroad, along a public highway, or causes or directs such * * * vehicle or engine to be so driven, * * * unless a person of mature age shall precede such * * * vehicle or engine by at least one-eighth of a mile, carrying a red light, if in the nighttime, and gives warning to all persons whom he meets traveling such highway, of the approach of such * * * vehicle or engine, * * * shall be deemed guilty of a misdemeanor.’
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Amberg v. Kinley
...Sup . Ct. 619, 38 L. Ed. 434;Hayes v. Michigan Central Ry. Co., 111 U. S. 228, 239, 4 Sup. Ct. 369, 28 L. Ed. 410;Kelley v. N. Y. State Rys. Co., 207 N. Y. 342, 100 N. E. 1115;Fluker v. Ziegele Brewing Co., 201 N. Y. 40, 93 N. E. 1112, Ann. Cas. 1912A, 793. This principle of law is illustra......
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De Caprio v. New York Cent. R. Co.
...more or less conclusive of negligence as to every one. Again, a particular statute may have both ends in view. Kelley v. N. Y. State Railways, 207 N. Y. 342, 100 N. E. 1115. When this is so, he who is to be particularly protected has a cause of action because the statute is violated to his ......
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