Miller v. New York Central & Hudson River Railroad — 48 N.Y. St. Rep. 23

Majority

p. 23

Morris S. Miller, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

(Supreme Court, General Term, Fourth Department,

Filed September 30, 1892.

Headnote

Negligence—Railroads—Speed of train.

In an action against a railroad company for personal injuries received at a crossing, it is proper to submit to the jury the rate of speed of the train as a ground of negligence.

Appeal from judgment entered in Oneida county on 13th February, 1892, upon a verdict at Oneida circuit in favor of the plaintiff" for $906; also from an order denying a motion on the minutes for a new trial. For former appeal see 40 St Rep., 987 .

C. D. Prescott, for app’lt; Sayles Searle & Sayles, for resp’t.

The evidence in this case is the same as upon the former trial The main question now is over the charge on the question of speed. The only exception that raises the point is at fol. 620. The defendant’s counsel there asked an exception “ to that part of your honor’s charge in which you hold that the rate of speed constitutes any ground of negligence in this case.” The court replied: “ Yes to whatever I said on that subject.”

It was proper to submit to the jury the rate of speed as a ground of negligence. The court of appeals have so held in a number of cases under circumstances that would apply here. Salter v. R. R. Co., 88 N. Y., 50 ; Thompson v. R. R. Co., 110 id., 637; 16 St. Rep., 869 ; Coleman v. R. R. Co., general term, fourth department, September, 1891, 40 St. Rep., 985 ; affirmed in 131 N. Y., 617 ; 43 St. Rep., 961 . The trouble, if any, about the charge relates to the manner in which this question was submitted. No "fault, however, was found with that. If it had been, it might have been at the time remedied. The trouble in that respect, if any, was not of sufficient importance to call for a reversal in absence of a proper exception.

Judgment and order affirmed.

Hardin, P. J., Martin and Merwin, JJ., concur.