Nash v. New York Central & Hudson River Railroad

—This is an appeal from a judgment entered upon a verdict in favor of the plaintiff and from an order denying a motion for a new trial.

The action was for causing the death of Mrs. Margaret

At the last general term of this court in an action by this same plaintiff, individually, against the same defendant, growing out of the samé accident and involving the same facts and issues, we held that it was a proper case for submission to the jury. See 14 N. Y. State Rep., 531.

The facts have not been materially changed by the trial in this case, and it follows that if we were right in thus deciding the previous case, this case must be affirmed, unless there is some exception raising a new question.

We will briefly notice the exceptions. , It was certainly competent to show that the defendant had erected whistling posts, and was in the habit of whistling near this crossing, upon the question whether the plaintiff, under all the circumstances, exercised due care.

It was extremely difficult for a person approaching this crossing to see a coming train; besides, the track was so constructed as to muffle the sound of a running train. The plaintiff testified that he stopped about seventy-five feet away from the track, and listened to ascertain if any train was coming. If it had been the universal custom to give warning at this place, and that was known to the plaintiff, it was material for the jury to know this fact in order to judge properly of the conduct of the plaintiff.

It was also a question for the jury as to defendant’s negligence; while it is true there is no law making it obligatory upon a railroad company to give warning except at public crossings, yet they may make a law for themselves. If such company establish a uniform practice to give a signal at a crossing, although private but frequently used, and such practice is notorious, such conduct justifies the expectation of those having occasion to cross, that such warning will be given, and a failure to give the accustomed warning is a proper fact for the jury to consider in passing upon the question of defendant’s negligence. Ernst v. H. R. R. R. Co., 39 N. Y., 61 ; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y., 535 .

It was also proper to permit the witness Nash to explain his testimony given upon a former trial, as the defendant had read extracts from this testimony.

The other exceptions relate mainly to the charge of the judge. The whole charge taken together was as favorable to the defendant as the facts warranted. No error is pointed out sufficient to warrant a reversal of the judgment.

The main exception in the case was to the refusal of the judge to grant a nonsuit at close of plaintiff’s case. This exception brings up all the issues in the case.

Upon this subject we refer to the opinion in the previous case (14 N. Y. State Rep., 531), and upon that opinion overrule the exceptions herein.

Dykman, J., concurs; Barnard, P. J., not sitting.