Majority
p. 271Edward Burnes, Jr., by Guardian, App’lt, v. The Staten Island Rapid Transit R. R. Co., Resp’t. (Supreme Court, General Term, Second Department, Filed February 8, 1892.)
Headnote
Bailroad—Negligence.Plaintiff was injured by one of defendant’s trains while trying to save a child which had got upon the track. It appeared that the line of vision extended to a plaster mill which was between 250 and 800 feet from the place of the accident; that the danger signals were given at a distance of 350 feet, and the brakes applied as soon as plaintiff attempted to go on the track, but the train could not be stopped in time to prevent the accident. Held, that the proof of the engineers negligence was insufficient.
Appeal from judgment of non-suit
Action to recover for injuries alleged to have been caused by defendant’s negligence.
Wm. M. Mullen, for app’lt; Tracy, McFarland, Boardman & Flail, for resp’t.
Mo negligence upon the part of the railroad company, defendant, was proven. A passenger train going west, consisting of a locomotive and seven passenger cars and at a speed of eighteen or twenty miles an hour, struck the plaintiff and injured him. The boy was a brave boy and was hurt in an attempt to save a smaller boy,, being only some four or five years old^who had thoughtlessly got upon the track. The train had passed Jersey street, which is a highway crossing, and had sounded the signal required by law for a highway crossing. It is about fifteen or sixteen hundred feet from Jersey street to the place of the acci
p. 272
dent, and there is no intervening highway crossing. People were accustomed to clamber down a steep bank of about twenty feet, to the railroad track and then go across it to the water. The approach of a train going west to the boy was around a curve some 800 feet away and the vision of the track was cut off- until the curve was turned. The whistle was blown on rounding the turn and again when the train got around it. The danger signals were sounded before Burnes, the plaintiff, started to go across the track. The line of vision extends to the corner of a plaster mill. The accurate distance is not proven, but it is less than 800 feet and over 250 feet It was at a distance of 850 feet from the place of the accident when .the danger signals were sounded. As soon as Burnes "attempted to go on the track the brakes were applied, but it was too late. The only claim of negligence is that the engineer of the locomotive should have seen the little boy Conners, who was on the track, and stopped the train. This would be the best evidence of negligence if it was proven, but within the case Chrystal v. Troy & Boston R. R. Co., 105 N. Y., 164 ; 6 St. Rep., 833 , the proof is insufficient. The engineer could assume that the person on the track would get off; he was not bound -to expect helpless, infants on the track.
The judgment should be affirmed, with costs.
Dykmar and Pratt, JJ., concur.