Salter v. Utica & Black River Railroad

New York Supreme Court

Salter v. Utica & Black River Railroad

20 N.Y. Sup. Ct. 187

DecidedJanuary 15, 1878

StatusPublished

This text of 20 N.Y. Sup. Ct. 187 (Salter v. Utica & Black River 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.

Bluebook

Salter v. Utica & Black River Railroad, 20 N.Y. Sup. Ct. 187 (N.Y. Super. Ct. 1878).

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Opinions

Smith, J.:

Tbe defendant’s counsel requested tbe court to charge tbe jury, without qualification, that if tbe plaintiff’s intestate approached tbe crossing at such speed as to be unable to stop or turn bis horses aside, before going on tbe track, be was negligent.

Tbe presiding justice thinks tbe refusal was error, and that for that reason tbe judgment should be reversed and a new trial ordered.

I am unable to concur in that opinion; I think tbe refusal of tbe court to charge in tbe exact terms of tbe request was correct. It depended upon certain questions of fact, which tbe jury were to decide upon evidence in some respects conflicting, and from which [188]*188different conclusions might be drawn, whether the deceased was negligent in driving towards the crossing in the manner stated in the request. If the approaching train was not in sight or hearing, or if, with the exercise of due care and attention, the deceased was not aware of its approach, there was nothing in the speed or manner of his driving which the law can pronounce negligence per se. The questions whether he omitted to look and listen, or whether, having looked and listened, he failed, without fault on his part, to see or hear the coming train, were for the jury.

The court instructed the jury, in reply to the request, that if the intestate approached the track at such speed that he was unable to control or stop his team, without making any effort to apprehend the approach of the train, he was guilty of negligence. The defendant’s counsel excepted, on the ground that the charge was not exactly as requested. The charge was quite as favorable to the defendants as they were entitled to, except that it, in effect, treated the intestate as free from negligence, if he made any effort, however slight, to ascertain whether a train was approaching, whereas, he was required to make such effort as was reasonable in the circumstances of the case. That point, however, was not suggested by the exceptions taken, and the defendants cannot now avail themselves of it.

I think the case was well tried and that the judgment should be affirmed.

Talcott, J., concurred.

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Smith, J.:

Tbe defendant’s counsel requested tbe court to charge tbe jury, without qualification, that if tbe plaintiff’s intestate approached tbe crossing at such speed as to be unable to stop or turn bis horses aside, before going on tbe track, be was negligent.

Tbe presiding justice thinks tbe refusal was error, and that for that reason tbe judgment should be reversed and a new trial ordered.

I am unable to concur in that opinion; I think tbe refusal of tbe court to charge in tbe exact terms of tbe request was correct. It depended upon certain questions of fact, which tbe jury were to decide upon evidence in some respects conflicting, and from which [188]*188different conclusions might be drawn, whether the deceased was negligent in driving towards the crossing in the manner stated in the request. If the approaching train was not in sight or hearing, or if, with the exercise of due care and attention, the deceased was not aware of its approach, there was nothing in the speed or manner of his driving which the law can pronounce negligence per se. The questions whether he omitted to look and listen, or whether, having looked and listened, he failed, without fault on his part, to see or hear the coming train, were for the jury.

The court instructed the jury, in reply to the request, that if the intestate approached the track at such speed that he was unable to control or stop his team, without making any effort to apprehend the approach of the train, he was guilty of negligence. The defendant’s counsel excepted, on the ground that the charge was not exactly as requested. The charge was quite as favorable to the defendants as they were entitled to, except that it, in effect, treated the intestate as free from negligence, if he made any effort, however slight, to ascertain whether a train was approaching, whereas, he was required to make such effort as was reasonable in the circumstances of the case. That point, however, was not suggested by the exceptions taken, and the defendants cannot now avail themselves of it.

I think the case was well tried and that the judgment should be affirmed.

Talcott, J., concurred.

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20 N.Y. Sup. Ct. 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salter-v-utica-black-river-railroad-nysupct-1878.