Cox v. New York Central & Hudson River Railroad

74 N.Y.S. 1011

Opinion

PER CURIAM.

Without passing upon the other questions presented on this appeal, we think the judgment and order should be reversed for the refusal of the court to charge that the general duty of looking for the approach of trains was imposed by law upon- the plaintiff’s intestate, notwithstanding she was only 14 years of age. While she was only “expected and required to exercise the measure of care and caution that is common and usual in one of her age” (Thompson v. Railroad Co., 145 N. Y. 196, 199, 39 N. E. 709, 710), she was required to apply that degree of care to the process of looking and listening for trains. We express no opinion as to whether, under the proof, the jury was or was not justified in concluding that she did so. We are also of opinion that the learned court erred in charging the jury, in effect, at folio 297, that contributory negligence did not necessarily preclude the plaintiff from recovering damages for the negligence of the defendant. This is not the law of this state. To tell the jury that it was free to find for the plaintiff, notwithstanding it may have thought that his decedent was guilty of negligence contributing to the accident, was plain and reversible error.

Judgment and order reversed, and new trial granted; costs to abide the «vent.