Bond v. New York Central & Hudson River Railroad

New York Supreme Court

Bond v. New York Central & Hudson River Railroad

23 N.Y.S. 450, 69 Hun 476, 76 N.Y. Sup. Ct. 476, 52 N.Y. St. Rep. 637

CourtNew York Supreme Court

DecidedMay 9, 1893

StatusPublished

Cited by1 cases

This text of 23 N.Y.S. 450 (Bond v. New York Central & Hudson River Railroad) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bond v. New York Central & Hudson River Railroad, 23 N.Y.S. 450, 69 Hun 476, 76 N.Y. Sup. Ct. 476, 52 N.Y. St. Rep. 637 (N.Y. Super. Ct. 1893).

Pincite

Opinion

PUTNAM, J.

The questions involved in this case are so well settled, and have been so often discussed, that an opinion is unnecessary. The trial, court having directed a verdict for defendant, on this appeal plaintiff is entitled to the most favorable construction of the evidence. Rehberg v. Mayor, etc., 91 N. Y. 141. There was testimony given tending to show negligence on the part of the defendant in the management of its gates, which, if submitted to the jury, would have sustained a verdict for the plaintiff. Kane v. Railroad Co., 132 N. Y. 160, 30 N. E. Rep. 256; Phillips v. Railroad Co., (Sup.) 6 N. Y. Supp. 621. If contributory negligence on the part of Struing, the driver of the coal wagon, constituted a defense to plaintiff’s action, as claimed by defendant, the question as to such negligence was, under all the circumstances of the case, one of fact for the jury, and not one of law for the court. A traveler approaching a railroad crossing guarded by gates, as was the crossing in question, is not required to exercise the same vigilance in looking and listening as when the approaches are not so guarded. Kane v. Railroad Co., 132 N. Y. 160, 30 N. E. Rep. 256. It appears that when Struing approached the crossing the gates were down, and he stopped his team. A train passed, and the gate tender raised the gates, at the same time signaling Struing to cross. Struing’s view was obstructed to the west by buildings and by a train standing on the track. Being invited by the open gate and by the gate tender to cross when he did, and it being a descending grade, it was not necessarily negligent for Struing to allow his team to go on to the track on a trot. Nor, if Struing, when he first saw the approaching train so nearly upon him, and was called to [451]*451act suddenly in the fact of great danger, did not act with the best judgment in whipping up his horses, can he be held, as a matter of law, negligent. Twomley v. Railroad Co., 69 N. Y. 158. It is only in rather exceptional cases that the question of contributory negligence can be taken from the jury. Parsons v. Railroad Co., 113 N. Y. 364, 21 N. E. Rep. 145. Judgment should be reversed, and a new trial granted, costs to abide the event. All concur.

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PUTNAM, J.

The questions involved in this case are so well settled, and have been so often discussed, that an opinion is unnecessary. The trial, court having directed a verdict for defendant, on this appeal plaintiff is entitled to the most favorable construction of the evidence. Rehberg v. Mayor, etc., 91 N. Y. 141. There was testimony given tending to show negligence on the part of the defendant in the management of its gates, which, if submitted to the jury, would have sustained a verdict for the plaintiff. Kane v. Railroad Co., 132 N. Y. 160, 30 N. E. Rep. 256; Phillips v. Railroad Co., (Sup.) 6 N. Y. Supp. 621. If contributory negligence on the part of Struing, the driver of the coal wagon, constituted a defense to plaintiff’s action, as claimed by defendant, the question as to such negligence was, under all the circumstances of the case, one of fact for the jury, and not one of law for the court. A traveler approaching a railroad crossing guarded by gates, as was the crossing in question, is not required to exercise the same vigilance in looking and listening as when the approaches are not so guarded. Kane v. Railroad Co., 132 N. Y. 160, 30 N. E. Rep. 256. It appears that when Struing approached the crossing the gates were down, and he stopped his team. A train passed, and the gate tender raised the gates, at the same time signaling Struing to cross. Struing’s view was obstructed to the west by buildings and by a train standing on the track. Being invited by the open gate and by the gate tender to cross when he did, and it being a descending grade, it was not necessarily negligent for Struing to allow his team to go on to the track on a trot. Nor, if Struing, when he first saw the approaching train so nearly upon him, and was called to [451]*451act suddenly in the fact of great danger, did not act with the best judgment in whipping up his horses, can he be held, as a matter of law, negligent. Twomley v. Railroad Co., 69 N. Y. 158. It is only in rather exceptional cases that the question of contributory negligence can be taken from the jury. Parsons v. Railroad Co., 113 N. Y. 364, 21 N. E. Rep. 145. Judgment should be reversed, and a new trial granted, costs to abide the event. All concur.

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Bluebook (online)

23 N.Y.S. 450, 69 Hun 476, 76 N.Y. Sup. Ct. 476, 52 N.Y. St. Rep. 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bond-v-new-york-central-hudson-river-railroad-nysupct-1893.

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