Zwack v. New York, L.E.&W.R. Co.

• Decision Date: 10 October 1899
• Citation: 54 N.E. 785,160 N.Y. 362
• Parties: ZWACK v. NEW YORK, L. E. & W. R. CO.
• Court: New York Court of Appeals Court of Appeals

160 N.Y. 362

54 N.E. 785

ZWACK

v.NEW YORK, L. E. & W. R. CO.

Court of Appeals of New York.

Oct. 10, 1899.

Appeal from supreme court, appellate division, Fourth department.

Action by John Zwack, by his guardian ad litem, against the New York, Lake Erie & Western Railroad Company to recover for personal injuries. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appealed to the appellate division, and from a judgment of affirmance (40 N. Y. Supp. 821) it appeals. Affirmed.

Bartlett and Gray, JJ., dissenting.

Charles D. Nellany and Adelbert Moot, for appellant.

H. H. Bacon, for respondent.

O'BRIEN, J.

The plaintiff, a boy about 10 years old, was injured, while on his way to school, at the defendant's crossing at Hydraulic street, Buffalso, on the 24th of October, 1894. The jury rendered a verdict in his favor for $1,000, and the judgment entered thereon has been affirmed at the appellate division.

The general question presented by the appeal is whether the trial court committed an error in submitting the case to the jury. The testimony tended to show that the plaintiff, while crossing the street, was struck by the cowcatcher of a passenger train going west at the rate of 20 miles an hour. This rate of speed on the part of the defendant, in the absence of signals or safeguards at crossings, when passing through a populous city, was evidence upon which the jury could find negligence, so that there was no error in submitting that question to the jury. This court cannot well be asked to decide that such a rate of speed under such circumstances is not negligence as matter of law.

The remaining question is whether the plaintiff gave sufficient evidence to show that he was free from contributory negligence, or, rather, whether the proof was of such a character as to carry the case to the jury on that question. If that was, under the circumstances, a question of fact, and not of law, then the appeal could not be sustained. I think it was a question of fact. In order to determine in such cases what degree of care a boy of 10 years is bound to exercise, we must know something with respect to his capacity and maturity, and he is chargeable only with such a degree of care as can reasonably be expected from one of his age. As this court has said in a case quite similar to this: ‘The law is not so unreasonable as to exact from an infant the same degree of care and prudence in the presence of danger as it exacts from adults. An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected from one of its age.’ Byrne v. Railroad Co., 83 N. Y. 620;Swift v. Railroad Co., 123 N. Y. 645, 25 N. E. 378. It will be observed that both of these cases were actions by infants for injuries at crossings, where it appears that the infants were older in years, at least, than in the case at bar. The reasoning of the court in the case of Tucker v. Railroad Co., 124 N. Y. 308, 26 N. E. 916, is to the effect that an infant under the age of 12 years is presumed to be non sui juris, so the question with respect to his capacity at that age becomes one of fact. It is true that an infant even of more tender years may be shown to be sui juris. The fact must in such cases depend upon the capacity and intelligence of the child, and hence becomes a question for the consideration of the jury in connection with all the facts and circumstances of the case.

When we consider the age of the plaintiff in this case, and the evidence in regard to his capacity and intelligence, it would be very difficult, under the doctrine of the above cases, to take the case from the jury on that question, and have it determined as one of law. The testimony in this case would require the submission of the question to the jury, even if he had been an adult. The street upon which the plaintiff was walking runs practically north and south, and it was a route frequented by children in going to and from school. The defendant's railroad crosses this street at right angles. The tracks to the west run in nearly a straight line several hundred feet to the station. A few hundred feet east of the station there is a sharp curve in the track to the north. The plaintiff was going north on the west side of the street. At the crossing were two main tracks, besides eight or ten side tracks and switches. On arriving at the center of the first switch track south of the main track, he says, he stopped and looked east and west along the track for approaching danger. He saw or heard no engine or train from the east, but he did see two engines, joined together, coming from the west. They were coupled back to back, had the bells ringing, and were making considerable noise. As they were near the crossing, the plaintiff waited for them to pass towards the east, and when they had cleared he immediately started on his way north across the track; and about 25 feet from the place where he had stood to allow the engines to pass he was struck by a passenger train from the east, going, as already stated, at the rate of 20 miles an hour, and received the injuries for which the damages were awarded. The argument is that the plaintiff did not look towards the east, or, if he did, he could have seen the coming train and avoided the danger. He says that he looked both east and west, but if is urged that this testimony means that the looking was before he stopped for the engines to pass, and since he did not swear, in so many words, that he kept looking all the time, and especially during the infinitesimal period of time it took him to go 25 feet, the court should have taken the case from the jury. It was for the jury to give construction to the words of the witness, and the general statement that he looked both ways means in this case just what it does in every case of this character. The traveler is bound to use his eyes and ears, but, when he swears generally that he did, it is not ordinarily necessary, in order to take the case to the jury, to swear that he looked during every instant of the time, or while passing over every foot of the ground. The argument in support of this...