Brickell v. N. Y. C. & H. R. R. R. Co.
New York Court of Appeals
This is an appeal from a judgment of the general term, fourth department, affirming a judgment of non-suit and dismissal of the ■complaint. The action was brought to recover damages alleged to have been sustained by plaintiff from a collision between the wagon in which plaintiff was riding and the engine hauling a train of the defendant’s at a highway-crossing of the defendant’s road near Palmyra.
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This is an appeal from a judgment of the general term, fourth department, affirming a judgment of non-suit and dismissal of the ■complaint. The action was brought to recover damages alleged to have been sustained by plaintiff from a collision between the wagon in which plaintiff was riding and the engine hauling a train of the defendant’s at a highway-crossing of the defendant’s road near Palmyra. The plaintiff was riding and occupying the same seat with the driver of a single horse before a buggy wagon and paid the driver for carrying him a short distance from a station on the Central road…
1Opinion of the CourtPotter, J.
This evidence indicates to my mind, not merely a failure to show that absence or freedom from contributory negligence which is necessary to be shown upon the behalf of the plaintiff in •order to sustain a recovery for negligence upon the part of a railroad company, but clearly and beyond any question the actual existence of negligence of the driver and of the plaintiff which contributed to the plaintiff’s injury.
The excuse attempted to be set up for such conduct, that the top of the buggy and the snow ana wind rendered it more difficult to hear the noise of an approaching train, seems to…
2Cases cited3 opinions
- Tolman v. Syracuse, Binghamton & New York RailroadNew York Court of Appeals · 1885
- Hoag v. . N.Y.C. H.R.R.R. Co.New York Court of Appeals · 1888
- Robinson v. . N.Y.C. H.R.R.R. Co.New York Court of Appeals · 1876
3Cited by46 opinions
- Davis v. Chicago, R. I. & P. Ry. Co.Court of Appeals for the Eighth Circuit · 1907
- Bradley v. Missouri Pac. R.Court of Appeals for the Eighth Circuit · 1923
- Bresee v. Los Angeles Traction Co.California Supreme Court · 1906
- Clarke v. Connecticut Co.Supreme Court of Connecticut · 1910
- Cunningham v. City of Thief River FallsSupreme Court of Minnesota · 1901
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