McNamara v. New York Cent. & H.R.R. Co.

• Decision Date: 23 December 1892
• Citation: 32 N.E. 765,136 N.Y. 650
• Court: New York Court of Appeals Court of Appeals
• Parties: McNAMARA v. NEW YORK CENT. & H. R. R. CO.

136 N.Y. 650

32 N.E. 765

McNAMARA

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

Dec. 23, 1892.

Appeal from supreme court, general term, fifth department.

Action by Michael McNamara, administrator of Margaret McNamara, against the New York Central & Hudson River Railroad Company, for the death of plaintiff's intestate. From a judgment of the general term, (19 N. Y. Supp. 497,) reversing a judgment for plaintiff entered on the verdict of a jury, and an order denying defendant's motion for a new trial, plaintiff appeals. Reversed.

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

McMillan, Gluck & Pooley, (Daniel H. McMillan, of counsel,) for respondent.

O'BRIEN, J.

The plaintiff's intestate, a young woman about 27 years of age, was injured at a street crossing in Buffalo by one of the defendant's engines on the morning of the 14th of June, 1887, from which injuries death resulted. On the trial of this action he recovered a verdict against the defendant, but the judgment entered thereon has been reversed by the general term. It is not disputed that there was evidence given which tended to establish negligence on the part of the defendant, and which was proper and competent for the consideration of the jury. The judgment of reversal rests entirely upon the ground that the deceased, in attempting to cross the defendant's track, was, as matter of law, guilty of contributory negligence, which precludes a recovery in this action. It therefore becomes necessary to refer briefly to the testimony which was submitted to the jury, in order to determine whether the question was one of law or fact. The deceased was residing with her parents, and on the morning of the accident left the house as usual, to proceed to the place where she had been and was then employed, and, in order to reach her place of destination, she had to cross the defendant's track at or near the corner of Hamburg and Carroll streets. On approaching the crossing from the south, a train of the Rochester & Pittsburgh road was going west on the defendant's track, and the deceased waited till it had passed the crossing, and then resumed her journey. While crossing the railroad, one of the defendant's engines backed up from the west, and struck the deceased before she could get out of its way. The evidence tended to show that she waited on the south of the crossing for the Rochester & Pittsburgh train to get out of the way, and that then she looked both east and west before attempting to cross; that there was a curve in the road just west of the crossing, around which the engine came with the tender first, which prevented a full view of the track in the direction from which the danger came. The proof also tended to show that the engine was running at a high rate of speed, some of the calculations putting it as high as 30 or 40 miles an hour, and that the bell was not rung or the whistle sounded, and that, although there was a flagman stationed at the crossing, whose duty it was to warn persons approaching of danger, he was, at the time the deceased attempted to cross, absent from his post. But the principal witness for the plaintiff, who saw the deceased when she started to cross, and had noticed her for some time as she walked to wards the crossing, testified that as the Rochester & Pittsburgh train passed a volume of smoke was emitted from the engine, which settled down upon the crossing...