Nash v. New York Central & Hudson River Railroad — 22 N.Y. St. Rep. 106

Majority

p. 106

George E. Nash, Resp’t, v. The New York Central and Hudson River Railroad Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Negligence—Railroad crossings—Omission to give statute signals.

Where, in an action for personal injuries, sustained by being struck by an engine attached to a train on defendant’s railroad, the collision occurred at a private crossing. The defendant had treated the crossing as a public highway, so far as to put up signal posts and to give the statute signals required for public highways. On the occasion in question the usual . signals of warning were not given. Held, that the defendants were guilty of negligence.

2. Same—Contributory negligence.

Evidence showing that towards the direction from which the train was approaching the view from the private road was obstructed; that some of the obstructions were caused by the defendant; that no signals of the approaching, train were given; that the plaintiff acted prudently and was as watchful as the obstructions permitted, will repel the charge of contributory negligence.

Appeal from a judgment entered upon a verdict rendered at the Rockland county circuit.

This action was brought to recover damages for personal injuries sustained by the plaintiff by being struck by an engine attached to a passenger train on the defendant’s railroad, in Rockland county, in October, 1886.

The collision occurred at a private crossing over the railroad, near the residence of the plaintiff, in the afternoon.

, Seaman & Conger, for resp’t; Aslibel Oreen (Calvin Frost, of counsel), for app’lt.

—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 fifteen

p. 107

hundred 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 the 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.

Pratt, J., concurs._