New York, N. H. & H. R. v. Lehtohner

Second Circuit

New York, N. H. & H. R. v. Lehtohner

204 F. 775, 123 C.C.A. 587, 1913 U.S. App. LEXIS 1349

CourtCourt of Appeals for the Second Circuit

DecidedApril 14, 1913

DocketNo. 202

StatusPublished

This text of 204 F. 775 (New York, N. H. & H. R. v. Lehtohner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

New York, N. H. & H. R. v. Lehtohner, 204 F. 775, 123 C.C.A. 587, 1913 U.S. App. LEXIS 1349 (2d Cir. 1913).

Pincite

Opinion

PER CURIAM.

[1] The case now presented is not materially different from that which came before us on the other writ of error. Defendant urges that our former decision was based upon the assumption that the decedent came up the traveled path to a platform on the north side of the tracks and then started to cross to the station on the south side. While it was stated in the opinion that it is [776]*776not necessarily negligence as a matter of law to cross from one platform to another, the decision, as a whole, was not based on any such narrow ground. The underlying principle was that a railroad company owes duties to persons on usual and well-recognized crossings and that the traveling public in using such crossings are not necessarily and as a matter of law negligent.

[2] There is evidence in the record tending to show that there was, and had been for some time, a well-recognized, generally traveled pathway from the subway station to the track, reaching it a little east of the north platform, and thence diagonally across the track to the station; that it was known to the railroad company, and was the route usually taken by the station master himself. The court charged:

“Now, even wliere there is not what we all know as a grade crossing, it may he laid down for law. that a "railroad may, by its acquiescence, permit what amounts to a usual and well-recognized crossing, where pedestrians do not intrude upon the railroad track otherwise than for the purpose of crossing it, acquiescence, custom, habit, known or presumably known to the railroad company, may create a crossing where the stranger, perhaps, would not see it.”

This was a correct statement of the law. It then left to the jury two questions of fact:

1. Was there at this place such a usual and well-recognized crossing?

2. Did the deceased pursue such usual and well-recognized crossing?

It further instructed them that, if either of these questions was answered in the negative, their verdict should be for the defendant. By their verdict the jury answered both these questions in the affirmative. Although the evidence was conflicting, there was sufficient to sustain their verdict. We find no exception which should require a reversal.

Judgment affirmed.

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PER CURIAM.

[1] The case now presented is not materially different from that which came before us on the other writ of error. Defendant urges that our former decision was based upon the assumption that the decedent came up the traveled path to a platform on the north side of the tracks and then started to cross to the station on the south side. While it was stated in the opinion that it is [776]*776not necessarily negligence as a matter of law to cross from one platform to another, the decision, as a whole, was not based on any such narrow ground. The underlying principle was that a railroad company owes duties to persons on usual and well-recognized crossings and that the traveling public in using such crossings are not necessarily and as a matter of law negligent.

[2] There is evidence in the record tending to show that there was, and had been for some time, a well-recognized, generally traveled pathway from the subway station to the track, reaching it a little east of the north platform, and thence diagonally across the track to the station; that it was known to the railroad company, and was the route usually taken by the station master himself. The court charged:

“Now, even wliere there is not what we all know as a grade crossing, it may he laid down for law. that a "railroad may, by its acquiescence, permit what amounts to a usual and well-recognized crossing, where pedestrians do not intrude upon the railroad track otherwise than for the purpose of crossing it, acquiescence, custom, habit, known or presumably known to the railroad company, may create a crossing where the stranger, perhaps, would not see it.”

This was a correct statement of the law. It then left to the jury two questions of fact:

1. Was there at this place such a usual and well-recognized crossing?

2. Did the deceased pursue such usual and well-recognized crossing?

It further instructed them that, if either of these questions was answered in the negative, their verdict should be for the defendant. By their verdict the jury answered both these questions in the affirmative. Although the evidence was conflicting, there was sufficient to sustain their verdict. We find no exception which should require a reversal.

Judgment affirmed.

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Bluebook (online)

204 F. 775, 123 C.C.A. 587, 1913 U.S. App. LEXIS 1349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-n-h-h-r-v-lehtohner-ca2-1913.