Hyperlawhypertext legal database Demand v. New York Central 130 A.D. 875

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Demand v. New York Central

130 A.D. 875 Court N.Y. App. Div. English

Decision Majority · Dissent — McLaughlin, J. (dissenting):

Contents

Majority

p. 875
Charles A. Demand, as Administrator, etc., of Grover C. Demand, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant, Impleaded with Vulcanite Paving Company and Westchester Contracting and Trucking Company.

Headnote

Negligence — railroad — contributory negligence of drives' of a horse — duty of engineer.
Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 4th day of May, 1908, on a verdict, and also from an order entered on the 24th day of April, 1908, denying a motion for a new trial.
Judgment and order affirmed, with costs.

No opinion. Present — Patterson, P. J., McLaughlin, Laughlin, Houghton and Scott, JJ. (McLaughlin and Laughlin, JJ., dissenting.)

Plaintiff’s intestate was in charge of a horse which furnished the motive power for a hoist between two tracks of the defendant railroad company. The space between the tracks was over twenty feet. The horse “ edged over ” toward one of the tracks, and in endeavoring to force the horse back nearer the center of the open space, the decedent was struck by a passing train and killed. He was between the horse and the track, and the train did not strike the horse. If this was not contributory negligence, at least I do not think any negligence was shown on the part of the defendant. As I read the evidence, when the train came in sight some 1,300 feet away, the decedent was not then in a position where he would have been struck and the horse was quiet and apparently under his control. The engineer was not negligent in making no effort to stop the train at that time, and the only evidence is that, as soon as the danger of an accident became apparent, he did make every effort to stop the train

Dissent

p. 876
and prevent "the accident. “ Reasonable care in the management of trains which must make their time between stations, and have the right of way, does not require more.” (Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164 .) For these reasons I think the judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event. Laughlin, J., concurred.

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