Nash v. New York Central & Hudson River Railroad

Majority

p. 525

Nash v. New York Cent. & H. R. R. Co.

(Supreme Court, General Term, Second Department.

February 11, 1889.)

Headnote

1. Railroad Companies—Duty to Give Signals at Crossings.

Where a railroad company has treated a private road crossing as a public highway by putting up the usual signal posts, and by adopting the custom of giving the statutory signals required for public highways, its failure to give such signals thereat is negligence per se, if an accident is caused thereby.

2. Same—Accidents at Crossings—Contributory Negligence.

In an action for injuries received at such crossing, where it appears that the view from the road of the track in the direction from which the train was approaching

p. 526

was obstructed and broken, and plaintiff testifies that he was as watchful as possible, and there Is proof that the signals were not given, a finding that plaintiff was not guilty of contributory negligence is warranted.

'Appeal from circuit court, Rockland county.

Action by George E. Nash against the New York Central & Hudson River Railroad Company for injuries sustained by being struck by a train of defendant, at a private farm crossing. Judgment for plaintiff, defendant’s motion for new trial denied, and it appeals.

Argued before Barnard, P. J„ and Dykman and Pratt, JJ.

Ashbel Green, (Calvin Frost, of counsel,) for appellant. Seaman <& Conger, (Clarence B. Conger, of counsel,) for respondent.

The evidence shows that the accident in question happened at a private road crossing about a thousand feet south of the tunnel under the river range of hills, in Rockland county, south of Haverstraw. The defendant had treated the crossing as a public highway so far as to put up the usual signal posts about 1,500 feet from the crossing, and to give the usual statute signals as required for public highways. “The usual signals were given, ” is the testimony of one of the persons engaged in running the trains. Then, on proof to the contrary, and the jury having found that none were given on that occasion, negligence is thus made out if the omission to give the signals caused the accident. Although it was a private crossing, the defendant had, by establishing a custom for warning persons, using the way, of tile approach of the trains, made the liability the same in legal consideration as at highway crossings made by law. The plaintiff acted on the custom, and the defendant failed to observe it. Negligence was thus proven.

As to the contributory negligence of plaintiff, there was evidence on both sides of the controversy. The proof tended to show that towards the south, from which the train was approaching, the view from the private road is entirely broken at places, and obstructed at other parts of the way. Some of the obstructions were caused by the defendant. There is the ordinary inference that the plaintiff did not heedlessly expose his own life, and the life of his wife, who was with him, and killed; and there is direct proof that the signals were not given; and he testifies that he was as watchful as the surrounding country and the obstructions permitted. The jury have found that he acted prudently, and the proof supports the finding. The judgment should be affirmed, with costs. All concur.