Flanagan v. New York, New Haven & Hartford Railroad

5 Silv. Sup. 495

• Court: New York Supreme Court
• Decided: February 10, 1890
• Status: Published

Opinions

Barnard, P. J.

The case shows that Cornelius F. Flanagan, deceased, was a passenger on the defendant’s railroad in January, 1886, from Mt. Vernon to Pelhamville. When the train reached Pelhamville it was very dark. The train stopped so short a time that a passenger without bundles could scarcely get off before the train started up. The deceased was incumbered with packages, and was found so injured that he died the next day. His packages were lying about the place where he was hurt, which was very much to the eastward of the usual place of stoppage. The rule of duty upon the defendant as to the passengers is so plain and well settled as to need no authority. The deceased was entitled to have sufficient time in which to get from the cars to the ground. The proof shows that this urns not done. The witness Spark testifies that the train started so quick that' he had not sufficient time to get upon the platform of the station and let go the support of the iron brace of the car before the train started and gave him a jerk from the quick motion. He was the only passenger who got off at the end of the car in which he was riding.

The deceased was in a forward car and no one testifies that he saw him get off, but he was found mortally wounded by the cars with marks as if he had been dragged in this condition. The jury can easily infer that this accident was caused by the sudden starting of the cars under the evidence given. The stopping of the train out of the usual place was improper. It accounted for the haste in starting. The train run so fast in the station that it could not stop in the usual place. Besides this it Avas proven that there were no lights east of the station where the train actually stopped, and it was competent to show that the defendant furnished no light at the place where the passengers AArere required to leave the car.

It is too late to raise the question as to the letters of administration. The answer only denies knowledge and belief, and the trial ] Toeeeded as if the plaintiff was administratrix. The rule is well settled that when an objection can be obviated if made at the time, it is too late to raise the question after an appeal.

The judgment should, therefore, be affirmed, vtdth costs.

Dykman, J., concurs.