Weed v. New York Central & Hudson River Railroad — 98 N.Y. Sup. Ct. 293

Majority

p. 293

James Weed, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

Headnote

Negligence — gates at a railroad crossing, not in operation — it does not excuse a person who knows that the gates are only operated at certain hours.

The rule that a failure upon the part of a railroad corporation to shut gates, at a railroad crossing, may he considered by the jury as evidence of negligence upon the part of the corporation and also upon the question of a contributory negligence on the part of the injured person, does not apply-to.the case of a person, familiar with the crossing and aware that the corporation is accustomed to operate the gates only between seven a. m. and seven-thirty p. m., who is injured at ten minutes before six in the morning.

Appeal by tlie plaintiff, James Weed, from a judgment of the Supreme Court in favor of tlie defendant, entered in the office of the clerk of the county of Orange on the 22d day of April, 1895, upon the verdict of a jury rendered after a trial at the Orange Circuit, and also from the order denying the plaintiff’s motion fo7 a new trial.

A. F. F. 8eeger, for the appellant.

AsKbel Oreen and A. 8. Oassedy, for the respondent.

This was an action for damages for general injuries caused by plaintiff’s being run into by a south-bound train of defendant’s on the West Shore railroad at about ten minutes before six in the morning. The action was tried before a jury and a verdict rendered for defendant. The case was submitted to the jury under a fair and unexceptionable charge, and there is no exception in the case disclosing error sufficient to wai’rant a reversal of the judgment.

The principal point made by the plaintiff to establish his case was that the gate at the place where the highway crossed the track where the plaintiff was injured was not manned and ivorked.

The answer to this proposition as well as to the cases cited upon this point, is made by tlie fact that appeared njion the trial, that defendant was accustomed to operate the gate only between seven o’clock in the morning and seven-thirty p. m., and this fact

p. 294

was known to tlie plaintiff, wlio was accustomed to cross tlie railroad at this point; therefore, those cases which hold a failure to shut the gate may be considered by tlie jury upon the question of the defendant’s negligence and the plaintiff’s freedom from contributory negligence, are not in point upon the case here.

All these latter named cases, which are of a similar character, have been the result of accidents taking jdace while gates were in operation, and the injury was inflicted upon persons not familiar with tlie locality.

We think the verdict was fully supported by the evidence and ought to stand.

Brown, P. J.,.and Dyicman, J., concurred.

Judgment affirmed, with costs.