Harder v. Rome, Watertown & Ogdensburgh Railroad

New York Supreme Court

Harder v. Rome, Watertown & Ogdensburgh Railroad

2 N.Y.S. 70, 17 N.Y. St. Rep. 570, 49 Hun 610, 1888 N.Y. Misc. LEXIS 38

CourtNew York Supreme Court

DecidedJuly 2, 1888

StatusPublished

Cited by1 cases

This text of 2 N.Y.S. 70 (Harder v. Rome, Watertown & Ogdensburgh 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.

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Harder v. Rome, Watertown & Ogdensburgh Railroad, 2 N.Y.S. 70, 17 N.Y. St. Rep. 570, 49 Hun 610, 1888 N.Y. Misc. LEXIS 38 (N.Y. Super. Ct. 1888).

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Opinion

Landon, J.

From the facts as given above, we think the plaintiff’s neg-

ligence contributed to his injury, and the nonsuit was proper. He undertook to cross the tracks where he had, at best, but a mere license to cross. From the curvature in the tracks, and intervening erections, his range of vision in a south-easterly direction was limited, and therefore a vigilance eorrespond1 ing to the obvious danger was required. It may be said that this situation imposed greater and more active vigilance upon the defendant. This may be conceded without in the least exempting the plaintiff from like vigilance. The way was open to him to the station by Commerce street. The statute law, and, possibly, the ordinances of the city, had, with respect to that and other streets, imposed certain definite duties and restrictions as safeguards to the plaintiff and others. He voluntarily left the street, which was protected by these definite and specified safeguards, and took a course protected only by common-law regulations. These are vaguely defined as enjoining upon the defendant the duty to use, in respect to persons crossing the tracks, reasonable care in the movement of its trains. Barry's Case, 92 N. Y. 289; Bryne's Case, 104 N. Y. 362, 10 N. E. Rep. 539. Possibly the defendant did not use that care. But it is plain that the plaintiff, if he had been vigilant, as he ought to have been, could have seen this approaching engine in ample time to avoid it. With his face away from the engine, he slowly moved upon and across the track. Probably his senses were less acute in consequence of the liquor he had been drinking. Probably, as the engine had just passed in one [72]*72direction, he did not think it would return in the other. He did not see the engine at all before it struck him. He did not hear the warnings that others cried out to him. Plainly, whatever the cause, his vigilance was dormant, and not active. The judgment should be affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.

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Landon, J.

From the facts as given above, we think the plaintiff’s neg-

ligence contributed to his injury, and the nonsuit was proper. He undertook to cross the tracks where he had, at best, but a mere license to cross. From the curvature in the tracks, and intervening erections, his range of vision in a south-easterly direction was limited, and therefore a vigilance eorrespond1 ing to the obvious danger was required. It may be said that this situation imposed greater and more active vigilance upon the defendant. This may be conceded without in the least exempting the plaintiff from like vigilance. The way was open to him to the station by Commerce street. The statute law, and, possibly, the ordinances of the city, had, with respect to that and other streets, imposed certain definite duties and restrictions as safeguards to the plaintiff and others. He voluntarily left the street, which was protected by these definite and specified safeguards, and took a course protected only by common-law regulations. These are vaguely defined as enjoining upon the defendant the duty to use, in respect to persons crossing the tracks, reasonable care in the movement of its trains. Barry's Case, 92 N. Y. 289; Bryne's Case, 104 N. Y. 362, 10 N. E. Rep. 539. Possibly the defendant did not use that care. But it is plain that the plaintiff, if he had been vigilant, as he ought to have been, could have seen this approaching engine in ample time to avoid it. With his face away from the engine, he slowly moved upon and across the track. Probably his senses were less acute in consequence of the liquor he had been drinking. Probably, as the engine had just passed in one [72]*72direction, he did not think it would return in the other. He did not see the engine at all before it struck him. He did not hear the warnings that others cried out to him. Plainly, whatever the cause, his vigilance was dormant, and not active. The judgment should be affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.

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2 N.Y.S. 70, 17 N.Y. St. Rep. 570, 49 Hun 610, 1888 N.Y. Misc. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harder-v-rome-watertown-ogdensburgh-railroad-nysupct-1888.

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