Fitzgerald v. Long Island Railroad — 21 N.Y. St. Rep. 942

Majority

p. 942

Michael Fitzgerald, as Adm’r, etc., Resp’t, v. The Long Island Railroad Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

1. Negligence—Railboad cbossing—Liability op baidboad companies FOB ACCIDENTS.

Where in an action for damages for the death of the plaintiff’s intestate, by being run over on defendant’s railroad, it appeared that he was passing along a public avenue in the early part of the evening in April; that defendant’s railroad crossed this avenue diagonally; that a gate was maintained across the avenue, which was shut when trains were passing; that the flagman in charge of the gate had, on the occasion of the accident, raised the gate, and had gone home; that the view of an approaching train was obstructed, and that no signal of freedom from danger was given, and no bell sounded or whistle blown. Held, that the evidence; fully supported a verdict in favor of the plaintiff.

p. 943

3. Same—Contributory negligence.

Upon the question of the freedom of the deceased from contributory negligence, Held, that the absence of the gate was an invitation for the traveler to go on, and this fact may properly be stated to the jury, either by reading from the opinion on a former appeal, or by oral statements.

•3. Practice—Requests to charge—When refusal proper.

A request to charge upon a detached portion of the evidence upon any given question, is properly refused.

Appeal from a judgment entered upon the verdict of a jury rendered at the Kings county circuit in favor of the plaintiff, and from an order denying a motion for a new trial on the minutes. See 10 N. Y. State Rep., 433, for former appeal.

Hinsdale & Sprague, for app’lt; Martin J, Keogh, for resp’t.

Upon the former appeal in this action, the court held that under the facts proven upon the trial it was improper to dismiss the complaint. The present appeal presents the evidence upon both sides, with the verdict of the jury. Upon the whole case the verdict is fully supported. The plaintiff’s intestate was passing along Thompson avenue in Long Island City, in April, 1888, in the early part of the evening. The defendant’s railroad crossed this avenue diagonally. A gate was maintained across this avenue, which was shut when trains were crossing it. The flagman on this evening had raised the gates, and started for home.

There was no danger signal. The flagman had a safety signal in his hands* which he swung violently, but he did nothing beyond this except to cry out “Look out for the train,” after the men were killed. The defendant sounded no bell or blew no whistle. The defendant thus guaranteed safety by lifting its gates and having its flagman wave the signal of freedom from danger, and by omitting the statute signals of warning. The proof shows that the view of the ■train is obstructed by trees and houses at points in the .avenue as persons on the avenue approach the crossing.

The exception taken to the reading of the extract from .an opinion given on the first appeal, we think is not well taken. The extract stated an inference applicable to the evidence in the case, and was undoubtedly a fair argument upon the evidence against the charge of negligence upon the part of the deceased. Glushing v. Sharp, 96 N. Y., 676 .

The case was tried solely upon the absence of statute -signal to make out the defendant’s negligence. Upon the question of the freedom of deceased from negligence, the absence of the gate was an invitation to the traveler to go on, and the fact should have its full weight upon the question with the jury, and to that end might be properly

p. 944

stated to the jury, either by reading from the opinion, or by oral 'statements. The request to charge as to the effect-of a detached portion of the evidence upon any given question in the case, was properly refused. ■ The' entire charge as to what made negligence in defendant, and freedom from negligence in the deceased, was correctly given.

The judgment should, therefore, be affirmed, with costs.

Pratt and Dykman, JJ., concur.