Hyperlawhypertext legal database A. L. & J. J. Reynolds Co. v. Third Avenue Railroad 59 N.Y. St. Rep. 276

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A. L. & J. J. Reynolds Co. v. Third Avenue Railroad

59 N.Y. St. Rep. 276 Court N.Y.C.P. Decision date 1894-05-17 English

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p. 276
A. L. & J. J. Reynolds Company, Resp’t, v. Third Avenue Railroad Company, App’lt.
(New York Common Pleas, General Term,
Filed May 17, 1894.)

Headnote

1. Negligence—Contbibutory.
The fact that the driver, in crossing a track only 35 feet ahead of a car, does not look to see whether the caris approaching him or not, or how far distant it is, constitutes such negligence as to preclude a recovery.
3. Same—Compabative.
The doctrine of comparative negligence is not recognized by the courts of this state.
Appeal from the district court in the city of New York for the third judicial district.
John Verno Bouvier, Jr., for app’lt; L. B. Bunnell, for resp’t.

This action was brought to recover damages for injury to respondent’s wagon, resulting from a collision with one of appellant’s cars. In the case of Hamilton v. The Third Avenue R. R. Co., 6 Misc. Rep. 382 ; 56 St. Rep. 397 , this court at general term held that where the plaintiff undertook to cross the railroad tracks seeing a trolley car at a distance of some 40 feet, it was negligence on his part to make such an attempt. In this case while the car was not moving as rapidly as in the Hamilton case, yet the distance was only 25 feet ahead of the car j and it affirmatively appears and is uncontradicted that the plaintiff did not in any way look out to see whether a car was approaching him or not, or how far distant it was. In our judgment that constitutes negligence on the part of the servant which would preclude a recovery in th'is action. It is urged on behalf ,of the respondent, however, that notwithstanding this negligence appellant’s servants could, by the exercise of greater prudence and care on their part, have prevented the collision. Such' an argument brings up the contention of conparative negligence, a doctrine not recognized by

p. 277
the courts o£ this state. As we understand our law, it is that where the plaintiff is guilty of any negligence which contributes to the accident or injury sustained by him, there can be no recovery. That he did thus contribute to the accident in this case in our judgment is clear, and therefore we feel compelled to reverse the judgment and order anew trial, with costs to the appellant to abide the event.

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