Haines v. New York Cent. & H. R. R. — 30 N.Y.S. 1131

Majority

p. 1131

HAINES, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant.

(Superior Court of Buffalo, General Term.

May, 1894.)

Headnote

Action by Catherine Haines, as administratrix, etc., against the New York Central & Hudson River Railroad Company» McMillan, Gluck, Pooley & Depew, for appellant, George W. Cothran, for respondent.

This action is brought by th© plaintiff to recover damages for the death of her husband, which occurred on the 30th of April, 1892» while crossing the tracks of the defendant in the village of Tonawanda. No exceptions to the charge* or to the admission of evidence were taken on th& trial, and the only question presented is the sufficiency of the evidence to sustain the verdict of th© jury. We do not think the court could have taken the case from the jury, and directed a verdict for the defendant. There are some facts from which they might legally find the defendant negligent,—the? rate of speed, and the omission to give any warning of the approach of the train. The plaintiff’s want of care was properly submitted for the jury to pass upon, and the charge of the court to the jur^

p. 1132

-was clear, and presented the questions to be determined in plain and concise language. We think, therefore, the judgment and order appealed from should be affirmed, with costs. Judgment and order ¿affirmed, with costs.