Thompson v. Buffalo Ry. Co.

Decision Date26 February 1895
Citation145 N.Y. 196,39 N.E. 709
PartiesTHOMPSON v. BUFFALO RY. CO.
CourtNew York Court of Appeals Court of Appeals
OPINION TEXT STARTS HERE

Appeal from superior court of Buffalo, general term.

Action by Margaret E. Thompson, as administratrix of the estate of Alcy Thompson, deceased, against the Buffalo Railway Company. From a judgment of the general term (31 N. Y. Supp. 1134) overruling exceptions taken on the trial, ordered to be heard in the general term in the first instance, and directing judgment for plaintiff upon the verdict, defendant appeals. Reversed.

O'Brien, J., dissenting.

Porter Norton, for appellant.

George W. Cothran, for respondent.

HAIGHT, J.

This action was brought to recover damages for the alleged negligent killing of plaintiff's intestate. Alcy, the deceased, was a daughter of the plaintiff, 14 years of age, large for her years, and had been to school for two years. The defendant was engaged in operating an electric doubletrack street railway in Broadway, in the city of Buffalo. On the 26th day of May, 1893, between 8 and 9 o'clock in the evening, Alcy, with six other girls, was engaged in playing ‘I spy’ on Broadway, nearly in front of her residence, between Warner and Rother avenues. Alcy was on the northerly side of Broadway, and started to run across to the southerly side. As she approached the northerly track of the defendant's road, a car from the east (going west) passed. She stopped until the car was by, and then started to run across the street in the rear of the car; and as she reached the southern track, she was struck by one of defendant's cars going east on that track, and killed. Upon the trial, evidence was given on behalf of the plaintiff tending to show that the defendant's car upon the southerly track was proceeding at a higher rate of speed that was sanctioned by the ordinances of the city, and that no gong was sounded, announcing its approach. The only question which we are called upon to consider relates to the contributory negligence of the deceased. This question is presented by motions for nonsuit, for a direction of a verdict, and by a request that the court charge the jury ‘that if the girl passed immediately behind the west-bound car, without stopping to look in both directions to ascertain if a car was approaching, that the plaintiff cannot recover,’ all of which were refused, and exceptions taken.

Although a minor, no claim is made that Alcy was not sui juris. While she may not have possessed the judgment, caution, and prudence of persons of more mature years, she was expected and required to exercise the measure of care and caution that is common and usual in one of her age. She was familiar with the defendant's tracks, cars, and their mode of operation. It is true that the day before the defendant had changed its motor power from horses to electricity, but we are unable to discover how she was misled or deceived by this change. While persons have the right to cross streets at any place they may select, and are not confined to street crossings, street-railway cars between such crossings have a preference; and, while they must be managed with care, so as not to injure persons in the street, pedestrians must nevertheless use reasonable care to keep out of their way. Fenton v. Railroad Co., 126 N. Y. 625, 26 N. E. 967. In Baker v. Railroad Co., 62 Hun, 39, 16 N. Y. Supp. 319, a child eight years of age passed behind a car going in one direction onto the other track, and was struck by the horses of another car going in the opposite direction, and it was held in the First department that there could be no recovery. In Reich v. Railway Co., 78 Hun, 417, 28 N. Y. Supp. 1105, a boy was playing in the street with some comrades, in the evening. It was pleasant, but dark. His comrades...

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20 cases
  • Indianapolis Traction And Terminal Company v. Croly
    • United States
    • Court of Appeals of Indiana
    • December 22, 1911
    ...... evidence shows that the plaintiff failed to use due care in. view of her [54 Ind.App. 576] age and experience. Thompson v. Buffalo R. Co. (1895), 145 N.Y. 196, 39 N.E. 709; Shirk v. Wabash R. Co. . (1895), 14 Ind.App. 126, 42 N.E. 656; Ryan v. La. Crosse ......
  • Bremer v. St. Paul City Ry. Co.
    • United States
    • Supreme Court of Minnesota (US)
    • March 12, 1909
    ...which was passing in ordinary transit, the situation was correspondingly different from that in the instant case. See Thompson v. Buffalo, 145 N. Y. 196, 39 N. E. 709, in which a child of fourteen, attempting to cross a street in the middle of a block, ran behind a passing car without looki......
  • Bremer v. St. Paul City Ry. Co.
    • United States
    • Supreme Court of Minnesota (US)
    • March 12, 1909
    ...which was passing in ordinary transit, the situation was correspondingly different from that in the instant case. See Thompson v. B. R. Co., 145 N. Y. 196, 39 N. E. 709, in which a child of 14, attempting to cross a street in the middle of a block, ran behind a passing car without looking t......
  • Schoonoveir v. Baltimore & O. R. Co
    • United States
    • Supreme Court of West Virginia
    • October 24, 1911
    ...Railroad Co., 126 N. Y. 625, 26 N. E. 967; Tucker v. Railroad Co., 124 N. Y. 308, 26 N. E. 916, 21 Am. St. Rep. 670; Thompson v. Railway Co., 145 N. Y. 196, 39 N. E. 709; Railroad Co. v. Todd, 54 Kan. 551, 38 Pac. 804; Railway Co. v. Eininger, 114 Ill. 79, 29 N. E. 196; Masser v. Railroad C......
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