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Thompson v. New York Cent. & H. R. R.

149 N.Y.S. 611 Court N.Y. App. Div. Decision date 1914-10-30 English

Delivered by JENKS, P. J.

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p. 611
(164 App. Div. 117)
THOMPSON v. NEW YORK CENT. & H. R. R. CO.
(Supreme Court, Appellate Division, Second Department.
October 30, 1914.)

Headnote

1. Railroads (§ 305[1] ) — Injuries from Construction — Sign at Road Crossing — Degree of Care.
The obligation of a railroad company to maintain its road crossing signs in such a manner as not to frighten horses is only to exercise ordinary care and caution.
[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 988-971; Dec. Dig. § 305.*]
2. Railroads (§ 337*) — Negligence from Construction — Sign at Road Crossing — Proximate Cause.
Where a railroad crossing sign was caused to rattle by a sudden gust of wind at just the time when plaintiff was driving over the crossing, thereby frightening his horse and causing injuries to plaintiff, the ordinary care required of the railroad company would not have led it to apprehend the result, and it is therefore not liable for the injuries.
[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1090-1095; Dec. Dig. § 337.*]
p. 612
Appeal from Trial Term, Dutchess County.
Action by Henry George Thompson, by his guardian ad litem, against the New York Central & Hudson River Railroad Company. Judgment for plaintiff, and defendant appeals.
Reversed.
Argued before JENKS, P. J., and THOMAS, CARR, STAPLE-TON, and PUTNAM, JJ.
Robert Wilkinson, of Poughkeepsie, for appellant.
Walter Farrington, of Poughkeepsie, for respondent.

The plaintiff has recovered a verdict for the negligence of the defendant in the erection and the maintenance, of its sign with the legend “Railroad Crossing Look Out for the Cars” at a road crossing of defendant’s railway tracks. He complains that when he was about to drive his vehicle over the tracks his horse took fright at the rattling or creaking of the sign, ran away, and threw the plaintiff out and into a hole distant about 8 feet from the road. The plaintiff offered proof that the pole of the sign was slightly loose in the earth, that the braces were loose, the nails had worked loose, and the boards of the sign were “shaky,” so that the play of the wind caused them to rattle or to creak. He also offered proof that on divers other occasions other horses had been more or less thus frightened, and that about a year before the witness Banks had told the section boss that he had better attend to the sign, as it might frighten some one’s horse. The casualty occurred about 11 o’clock of a “blustery” December night, when, according to the plaintiff and his witnesses, the wind was very high, and blew “terribly at spells.” Both the plaintiff and his sister, who was his companion, testify that they did not hear any noise as they approached the crossing, but only as they attempted'to cross it, when, according to the plaintiff, there came “a sudden gust of wind which rattled the signpost.”

[U] The obligation of the defendant was that of ordinary care and caution. O’Sullivan v. Knox, 81 App. Div. 438 , 80 N. Y. Supp. 848 , modified as to form-of order only, and affirmed 178 N. Y. 565 , 70 N. E. 1104 . ' If the result of this creaking or rattling was not within the ken of reasonable prudence and foresight, then proximate cause was not established. Rowley v. Newburgh Light, Heat & Power Co., 151 App. Div. 65 -71, 135 N. Y. Supp. 944 ; Beetz v. City of Brooklyn, 10 App. Div. 382 , 41 N. Y. Supp. 1009 . I think that the defendant under its said obligation should not reasonably have apprehended what Spring, J., in O’Sullivan’s Case, supra, aptly terms the- “corresponding occurrences,” and that therefore the verdict was not justified by the evidence. O’Sullivan v. Knox, supra. See, too, McKenzie v. Waddell Goal Co., 89 App. Div. 415 , 85 N. Y. Supp. 819 , citing Lilly v. N. Y. c: & H. R. R. R. Co., 107 N. Y. 566 , 14 N. E. 503 ; Saverio-Cella v. Brooklyn Union El. R. R. Co., 55 App. Div. 98 , 66 N. Y. Supp. 1021 .

I advise a reversal of the judgment and the order.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.

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