Mitchell v. New York Central & Hudson River Railroad

9 N.Y. Sup. Ct. 535

• Court: New York Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Bockes, J.:

There was undoubtedly evidence given on the trial, bearing on the question of defendant’s negligence, sufficient to make the case a proper one for the jury on that branch of it; but it seems quite clear that the negligence — not to say gross carelessness — of the plaintiff’s intestate, contributed to the injury for which the recovery was had. Let it be conceded that the line of standing cars entirely cut off and prevented the view from the sidewalk, for over 200 feet southerly from the crossing, and it then stands undisputed, that, on passing the end of the line of those cars, the deceased came to a place where there was an unobstructed view on her right, and along the track, enabling her, without other difficulty than merely turning her head, to see an approaching train. There was, first, the space between the first and second track — about six feet; then the width of the second track; and then a further space of twenty feet to the third track, on which the accident. occurred. ■ Over this distance the deceased passed, as it appears, with nothing to obstruct the view in the direction of the approaching engine. Had she but turned her head a trifle, to make observation, the danger must have been seen. Indeed, when the deceased approached the third track, after passing the second, she had abundant opportunity, in a place of absolute safety, to make observation, which, if done, would have disclosed the danger in time for her readily to avoid it. Before attempting to cross this third track, and when in a place of absolute safety, it was her duty to look both ways, in order to avoid possible dangers.

It has been repeatedly held, that the omission of such precau-. tion is negligence, and will prevent a recovery for an injury ocea-. sioned by a passing train.

* In Wilcox v. The Rome, W. & Og. R. R. Co., it was decided, that, when the deceased was killed in attempting to cross the railroad track, within the limits of the. public highway, and at a public crossing, if it appear that the deceased would have seen the approaching cars in season to have avoided them, had he first looked before attempting to cross, it will be presumed that he did not look; and, by omitting so plain and imperative a duty, he will be deemed to have been guilty of negligence which precludes a recovery. This decision covers the case at bar, in all its principal phases. The deceased had the opportunity, in a place of safety, to make the necessary observa-. tion. The view was not obstructed by any intervening object. The locality and numerous tracks admonished her of danger, and she was bound to vigilance and the exercise of ordinary prudence. It was not necessary for her even to stop to look, as the mere turning of the head would have brought the line of tracks into full view, for a considerable distance in the direction from which, danger was to be apprehended. There was no other moving car; nothing whatever to divert or distract the attention, or to induce confusion. Thus, without excuse for the omission, the deceased evidently neglected the usual precaution for safety, and, with culpable heedlessness, placed herself in the way of disaster. Therefore, according to the well settled rule applicable in such cases, there can be no recovery for the injury to which her own palpable negligence contributed. The motion for a dismissal of the complaint should have been granted.

I am also clearly of the opinion, that the verdict of $4,000, is unauthorized by the proof. The recovery in this class of actions, must be confined to the pecuniary loss sustained by the death of the intestate; and damages can only be awarded on proof of loss. The rule was recognized in McIntyre v. N. Y. Cent. R. R. Co. * that the burden was upon the plaintiff to prove the pecuniary injury, and such facts as could enable the jury to determine what would be a fair and just compensation for the death of the party; and it is there intimated, if not in fact asserted, that such proof was necessary, in order to entitle the plaintiff to recover more than nominal damages. In the case at bar, there was no proof of pecuniary loss to any one, except what might be inferred from the two facts, that the deceased was a married woman, and aged twenty years. There was no evidence given of her capabilities, mental or physical ; nor of her situation and circumstances in life; nor how she had been or could be of benefit to her husband and next of kin. There was no proof whatever, showing that her life was of any pecuniary value or advantage to any one. Therefore, there was no proof that any pecuniary loss resulted to any person from her death, and the verdict of $4,000, is without evidence to give it support. It must have been the result of mere conjecture. As the case is here presented on the proof, no more than nominal damages were recoverable, had the right of action in other respects been established.

The order and judgment appealed from must be reversed, and a new trial granted, with costs to abide the event.

Present—Bockes and Boardman, JJ.

Order and judgment reversed and new trial granted, costs to abide event.

Haight v. N. Y. C. R. R., 7 Lansing, 11; Davis v. N. Y. C. & H. R. R. R. Co., 47 N. Y., 400; Barker v. Savage, 45 id., 191; Gorton v. The Erie R. Co., 45 id., 661; Beisiegel v. N. Y. C. R. R. Co., 40 id., 9, 22; Wilcox v. Rome, Watertown & Og. R. R. Co., 39 id., 358.

37 N. Y., 287, 289.