Havens v. Erie Railway Co.

53 Barb. 328, 1869 N.Y. App. Div. LEXIS 17

• Court: New York Supreme Court
• Decided: March 1, 1869
• Status: Published

Opinion

By the Court, B. Darwin Smith J.

This case comes here upon exceptions taken at the circuit and ordered to be heard at the general term in the first instance. It is, therefore, presented to us as a pure bill of exceptions, and we can only review the legal decisions made at the circuit, and those only so far as they were duly excepted to. The first exception taken upon the argument was taken to the refusal of the judge to charge as requested in these words : “ That if the deceased might, at any point within ten rods of the crossing, have easily seen the approaching train, nearly a mile off' he was bound to survey the space, or in other words to look up the road, and if, by omitting so to do, he lost his life, the plaintiffs cannot recover.” I do not see why the request did not, in substance, ask the judge to state the law correctly upon the point presented. But it seems to me that it virtually did nothing more than ask the judge to repeat what he had already, in substance, said to the jury. He had just said, in his charge to the jury, “ That if you shall say upon the evidence that, after going within eight, ten or twelve rods, they looked up and saw no train and heard none, you are to say whether it be ordinary prudence for them to go on the track, looking down the road for a train coming in that direction. Was the company in fault in the first instance, and if so were these men without fault ? Did they look and did they listen to see if the train was coming? Men approaching a railroad in plain sight are bound to look and see if any train is coming. If they look up and down the road, as men of ordinary prudence would do in traveling near a railroad, and were not negligent, the plaintiffs are entitled to recover if the persons in charge of the railroad were negligent." This part of the charge states the rule in respect to the conduct of a plaintiff in such cases correctly, and covers substantially the very proposition presented in the request to charge. It is not the duty of a judge at the circuit, in response to requests, to go over again the very ground or questions covered by the charge as given ; and it is not the right of counsel when the charge is ended to seek to get a repetition of a leading idea already fairly expressed, by a request to charge upon it anew, or in some little different phraseology, so as to get in that shape a virtual re-argument of the facts before the jury. The charge fairly stated the duty of a person approaching a railroad crossing to look up and down the road as men of ordinary prudence would do, in traveling near a railroad. It is not a question of law how far a man should look, but he must use his eyes and his ears, in view of the circumstances, as men of ordinary prudence would do in like cases. And this rule is one for the jury to apply, and it is not the duty of a circuit judge to refine upon a proposition of law, once fairly stated, and divide it and subdivide it to meet every varying view of the facts which may be taken by counsel. I do not think, if the judge had responded to this request as asked, he would, in effect, have stated any new, different or other principle of law than such as he had already well stated to the jury on the subject. This exception, therefore, I think, is not well taken. The same view applies to the next exception. The judge was asked to charge, “ That if the bell was rung, as the defendants’ engineer and fireman swear it was, the plaintiff cannot recover.” The judge had, • in substance, so charged. The judge had expressly said to the jury that if the train was running upon its ordinary time, if the engineer and fireman gave the signals required by law, they were not guilty of any wrongful act or negligence. The same remark in regard to the signals was repeated in different forms several times, in the course of the charge, and there was and could be no ground for mistake on this point. It was quite unnecessary for the judge to repeat his charge on this point, in response to this request. It was not error to refuse to charge that “ it mattered not whether the bell was rung the distance of eighty rods, if it was rung far enough from the crossing to warn passers by. The legislature has said that this “far enough to warn passers by” shall be eighty rods. The jury had no right to change the rule ás thus fixed. It was the duty of the defendants to ring such bell continuously for the distance of eighty rods, as stated by the judge.

[Monroe General Term, March 1, 1869.

These are all the exceptions taken or particularly urged upon our attention. Ho error, I think, was committed at the circuit, and the motion for a new trial should be denied.

Hew trial denied.

M. D, Smith, Johnson, and J. 0. Smith, Justices.]