Spooner v. Delaware

• Decision Date: 04 June 1889
• Citation: 21 N.E. 696,115 N.Y. 22
• Parties: SPOONER v. DELAWARE, L. & W. R. CO.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 22

21 N.E. 696

SPOONER

v.DELAWARE, L. & W. R. CO.¹

Court of Appeals of New York.

June 4, 1889.

Appeal from supreme court, general term, Second department.

Action by Walter C. Spooner, as guardian ad litem for Ethel A. Spooner, against the Delaware, Lackawanna & Western Railroad Company. A judgment for plaintiff was affirmed by the general term of the supreme court, and defendant appeals.

Hamilton Odell, for appellant.

A. W. Tenney, for respondent.

FINCH, J.

This action was for negligence, and resulted in a verdict against the defendant of $20,000. The general term, which had authority to consider and question its amount, has affirmed it, and our duty is confined to the inquiry whether any errors of law require its reversal.

1. At the close of plaintiff's case the defendant moved to dismiss the complaint, upon the ground that the action was not brought in the name of the real party in interest. The motion was denied, and there was an exception. No such objection had been taken by demurrer or answer. If it was apparent upon the face of the complaint, it could have been reached by demurrer, for there would have been a defect of parties. Otherwise it is new matter to be pleaded in the answer, and, if not, no such issue is raised, and no such question can be tried. Smith v. Hall, 67 N. Y. 50. The objection was one which, if taken in proper season, could have been obviated by a very simple and purely formal amendment, and, when not taken by either demurrer or answer, must be deemed to have been waived, and may be disregarded. The difficulty was one rather of form than substance, and had its basis in the title of the action alone, which was ‘Walter C. Spooner, as guardian ad litem of Ethel A. Spooner, an infant under the age of fourteen years.’ The complaint, however, stated a cause of action in favor of the infant, averring a wrong done to her and damages suffered by her, and so indicating that she was the real plaintiff appearing by her guardian ad litem. The defendant was not misled. The answer correctly interpreted the meaning of the complaint in spite of the informality of its title, for the defense was vested upon a denial of the negligence alleged, and an assertion of contributory negligence on the part of the infant. The formal defect in the title was therefore properly disregarded when raised at the close of the plaintiff's case, and the trial court was justified in construing the complaint as setting out a cause of action in the name and behalf of the infant appearing by her guardian.

2. One ground of negligence asserted was the defective construction of the crossing at which the plaintiff was injured. It appeared during the progress of the trial that the railroad was constructed and operated before the highway was laid out, and that the latter crossed the railroad, and therefore it is claimed, in the absence of any statutory provision of the state of New Jersey, within whose territory the accident occurred, it must be presumed that the duty of making and maintaining the crossing was upon the highway authorities, and not upon the railroad. The complaint, however, fairly averred an ownership of the crossing by the railroad company. It alleged that the plaintiff ‘had her foot inextricably caught and fastened between the rail and the planks at the crossing belonging to such railroad,’ and charged that the defendant negligently permitted an arrangement of the planks to be and remain defective. The answer denied that defective arrangement, but did not deny the ownership of the plank crossing, and raised no issue over that ownership and the duty flowing from it; and this construction of the pleadings becomes entirely just when we observe that the plaintiff offered proof of a reconstruction of the crossing after the accident by the railroad company was excluded, upon the defendant's objection. While it was inadmissible upon the question of negligence, it would have shown that the railroad company exercised the dominion of an owner over the plank crossing, and its rejection was justifiable only upon the ground that no such issue was raised by the pleadings.

3. Whether the crossing was defectively built and maintained was properly submitted to the consideration of the jury. The plank at the point of the accident was new, and laid parallel with the rail on its inside, and two and a half inches therefrom. It was laid with a straight edge, and the opening thus made for the flanges of passing wheels was the one in which the child's foot was caught. The other planks at the same crossing had the edge of the plank parallel to the rail beveled off or rounded, so that at the bottom it touched the rail, and the flanges had room to pass, while no opening such as to catch or fasten an incautious foot was left. There is evidence that a similar mode of construction existed at many other crossings of the company, and was uniformly uses upon some other railroads, although many retained the straight edges. The beveled edge seems to be an obviously prudent mode of construction known to the company, and adopted by it at this very crossing. It prevents any such possible trap for a child's or a woman's foot as is created by the straight edge, and, while such an accident had never before occurred in the history of the company, its possibility was quite obvious to any ordinary observation. Many accidents have occurred from feet becoming caught in a frog, and such...