Quill v. New York Central & Hudson River Railroad

This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the carelessness and negligence of defendant’s servants in the management of a train of cars, on the 29th day of March, 1888, at 130th Street and North River, in the City of New York. It appears that the road of the defendant at that place consisted of four tracks, and that at the time of the accident the decedent was standing west of the westerly track, and entirely outside of it, as some of the witnesses assert; or, according to others, with one foot on the westerly rail of the westerly track, which track at the time of the accident was in use only for the storage of defendant’s freight cars and not for the passage of iis trains. At the foot of West 130th Street, and west of defendant’s tracks, there was a public ferry to Fort Lee, New Jersey, and a coal yard owned by one Tone. Murphy, the driver of a coal cart, was proceeding westward along 130th Street, towards Tone’s coal yard, and had nearly succeeded in crossing defendant’s tracks, when the tail end of his cart came into collision with one of the defendant’s freight trains which was being backed in a southerly direction across 130th Street. The collision caused the coal cart to be thrown forward in a westerly direction upon plaintiff’s intestate, thus inflicting upon him the injuries which caused bis death shortly afterwards.

It was contended on the part of the plaintiff, that, at the time of the accident, the decedent was in a position of perfect safety to hitnself; that the collision between the coal cart and the defendant’s train was due to neglect on the part of the defendant’s servants to give proper and timely warning of the danger of an approaching train to persons seeking to cross the railroad at 130 th Street; that persons attempting to

Defendant, on the other hand, contended that trains approaching from the north were visible at a distance sufficient to warn Murphy of the danger of an attempt to cross the track, and to allow him ample opportunity to remain in or to reach a place of safety ; but that, not heeding the warning of the flagman, or the bell of the approaching train, he recklessly proceeded to cross the track, thus causing the collision which resulted in the death of the plaintiff’s intestate. Defendant also contended that the decedent himself was guilty of contributory negligence in remaining where he was at the time of the accident.

At the trial there was testimony in support of the several contentions of the parties to this action; the plaintiff maintaining that the decedent met his death solely through the carelessness of defendant’s servants, and the defendant contending that the negligence of the plaintiff’s intestate contributed to the injury, and also that the accident was caused wholly by the recklessness of Murphy. Upon this conflicting evidence the learned trial justice submitted the question of defendant’s negligence and the decedent’s contributory negligence to the jury, who. found a verdict in favor of plaintiff for three thousand dollars. There was sufficient evidence to sustain a finding of negligence on the part of the defendant’s servants, and of no contributory negligence on the part of the decedent, and the appellate court cannot disturb the verdict on the ground that it was not warranted by the evidence.

The trial justice was requested to charge the jury that if the negligence of the driver of the cart caused the accident the plaintiff could not recover. That request was refused. The justice, however, charged that the plaintiff could not

The trial justice charged the jury that if they believed the stationing of the flagman by the defendant to warn persons of approaching danger was sufficient for that purpose, negligence could not be imputed to defendant because of its failure to provide other means for the same end. But he declined to instruct the jury, as requested, that, in considering the sufficiency of provision by flagmen, the fact that it does not appear that at any time previous an accident had occurred at that precise place, must be taken as conclusive proof of such sufficiency. No error was committed in that declination to instruct the jury. The question under consideration was the negligent conduct of the defendant’s servants at the time of the accident to the plaintiff’s intestate, and the fact that there was no proof of any accident at that same place, prior to the one resulting in his death, does not appear tó be either relevant or material to the determination of the question at issue.

An exception was also taken by defendant to so much of the charge as stated that if a sudden and instinctive effort on the part of the coal cart driver, Murphy, to escape impending danger after receiving warning thereof, resulted in the accident, there not being sufficient time to form an intelligent and deliberate judgment as to the best means of escape, negligence was not imputable to him. This charge was proper and is well sustained by. authority (Lowerey v. Manhattan El. R. Co., 99 N. Y. 158 ).

It was proper for the trial justice to submit to the jury the question of decedent’s contributory negligence in remaining within, or partly within, the rails of the westerly track at the time of the approach of the train from the north. If the

' And though the particular portion of the charge excepted to may have, in effect, amounted to an assumption of a fact which should have been left to the jury, the exception to it would be nevertlreless, insufficient, unaccompanied by a specific request that the fact assumed be disposed of by the, jury, and there is no such request before us (Mallory v. Tioga R. Co., 3 Abb. Ct. of App. Dec. 139).

The only exception urged by the defendant to the rulings

The judgment should be affirmed, with costs to the respondent.

Bookstaver, J., concurred.

Judgment affirmed, with costs.