Kain v. New York & New England Railroad — 20 N.Y. St. Rep. 891

Majority

p. 891

Thomas Kain, Resp’t, v. The New York and New England Railroad Company, App’lt. William Kain, Resp’t, v. The New York and New England Railroad Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

1. Negligence—Railroad crossings—Contributory negligence.

A person approaching a railroad crossing is not, as matter of law, guilty of contributory negligence, because, the' track being open to his vision for a distance of 200 feet, he does not see an approaching train until it is within 100- feet of him, where the evidence shows that he was driving slowly and listening for a train, and the speed of the train being such that it would pass the 100 feet in three seconds. The question is for the jury.

2. Same—Judge’s charge—Degree of care.

In an action for personal injuries received at a railroad crossing, it is not error for the trial judge to refuse to charge that plaintiff was hound to use “ extra precaution and vigilance in approaching the crossing.”

Appeals from judgments entered upon verdicts of jury at the Dutchess county circuit court.

The actions were brought, one for personal injuries and one for loss of horse, etc.

W. C. Anthony, for pl’ff; W. L Thorn, for resp’ts.

We do not find that plaintiff was guilty of contributory negligence. He drove slow and listened for the train. He was not obliged to stop.

Negligence is claimed on the ground that having a track open to his vision for 200 feet he did not see the train until it was within 100 feet of him. At the then rate of speed the train would pass that 100 feet in about three seconds. So the criticism amounts to this, that plaintiff failed to see during three seconds that it was within his range of vision. But his team may well have required some attention, and we cannot say as matter of law that to withdraw his gaze from the track during three seconds was contributory negligence.

That question was for the jury, and their verdict must stand.

The court was requested to charge that plaintiff was bound to use “extra precaution and vigilance in approaching the crossing. ” The appropriateness of the request is not perceived. He was bound to use due care, such care .as the circumstances and law required, and we must assume that the jury were charged to that effect. If “extra care” meant anything more or different from due care, the request was properly refused.

. Judgment affirmed, with costs, r Barnard, P. J., concurs; Dykman, J., not sitting.