Reynolds v. New York Central & Hudson River Railroad

Andrews, J. We think this judgment must be reversed, on the ground that there was no evidence in the case upon which the jury was authorized to find the absence of negligence on the part of the plaintiff’s intestate which contributed to his death. The absence of negligence, on the part of the person injured, must be found by the jury, in order to justify a recovery against a defendant who is sued for damages for a personal injury, caused by negligence. It belongs to the definition of the cause of action, that the injury must have been occasioned solely by the negligence of the defendant, and either by direct proof given by the plaintiff, or from the circumstances attending the injury, the jury must be authorized to find affirmatively, that the person injured was free from fault which contributed to the accident, or the action is not maintained. If this element is wanting in the case, the court may nonsuit or set aside a verdict for the plaintiff. This rule is now too firmly settled in this State *251 to be disturbed. (Johnson v. The Hudson River R. R. Co., 20 N. Y., 66; Wilds v. The Same, 24 id., 430; Davis v. N. Y. C. and H. R. R. R. Co., 47 id., 400.) The plaintiff’s intestate was shown to be a bright, intelligent boy, thirteen years of age, who, the summer before his death, had worked on a farm, and received thirteen dollars a month and his board for his services, and was, at the time of the injury, living at home, and attending school. He was perfectly conversant with the railroad and the manner of running the trains, and crossed it several times each day on going to and returning from school. At noon of the day when he was killed, he started from the school-house, which was about two hundred feet north of the railroad track, and passed into the highway, which crossed the track of the railroad at nearly right-angles, and turned southerly, going toward his home, which was south of the railroad. About this time, a freight-train crossed the highway, going east on the south track of the railroad, and the regular passenger train, at about the same time, came from the east on the north track. The boy was last seen alive in the highway going toward the crossing, and about one hundred feet distant from it. He was found dead in the cattle-guard between the tracks, and the evidence leaves no doubt that he was struck and killed by the engine of the passenger train. The railroad track at this point is straight for about half a mile each way; and it was proved that the deceased, at a point ten feet north of the track, if in the beaten path of the highway, could have seen the engine of the passenger train when 750 feet distant, and when within three feet of the track the approaching train could be seen for half a mile. The day was fair, with but little wind, and the evidence on the part of the plaintiff tended to show that the bell was not rung, and that no signal of the approach of the train was given. There was sufficient proof to go to the jury, of the defendant’s negligence, but we think that the proof did not warrant the jury in finding that there was no negligence on the part of the deceased. *252 It is suggested that the smoke from the freight train may have obscured his vision, and prevented his seeing the passenger train; or, that as there was some snow and ice on the ground, he may have slipped in attempting to cross the track, or to escape from the train approaching; or, that having stepped upon the track to allow the freight train to pass, his attention was diverted for a moment, when he was struck by the train from the opposite direction. But these are mere conjectures, without any basis in the evidence to support them. Doubtless, the jury might infer that the deceased was governed by the natural instinct of self-preservation, and would not put himself recklessly and consciously in peril of death, but that men are careless and subject themselves thereby to injury, is the common experience of mankind, and when injured, no presumption exists in the absence of proof that they were exercising due care at the time. In applying the rule that a person who seeks to recover for a personal injury, sustained by another’s negligence, must show himself free from fault, the law discriminates between children and adults, the feeble and the strong, and only requires of each the exercise of that degree of care to be reasonably expected in view of his age and condition. (O'Mara, v. Hud. R. R. R. Co., 38 N. Y., 445; Mowrey v. Centl. City R. R. Co., 51 id., 666; Shearman & Redfield: on Negligence, 59.) But it cannot be said, under the circumstances of this case, that the deceased was not capable of appreciating the danger of going upon the railroad track without looking for approaching trains, which, if he had done, would have saved his life, so far as can be seen from the evidence. We are obliged to say, after attentively considering the evidence, that, in our opinion, the case w.as not made out in the respect mentioned. The judgment must be reversed, and a new trial granted. All concur, except Church, Ch. J., not voting. Judgment reversed.