McPhillips v. New York, New Haven & Hartford Railroad

Per Curiam. The omission of counsel to insert in the case a statement that it contains all the evidence precludes consideration of the proposition so elaborately argued, that the verdict is against the weight of evidence. Claflin v. Flack, ante, 916, (February term;) Arnstein v. Haulenbeek, 11 N. Y. Supp. 701. Nevertheless the judgment must be reversed for prejudicial error in the charge to the jury. The action is to recover damages for the death of a lad, alleged to have been caused by defendant’s negligence. The deceased, having crossed the railway, returned to warn back two boys, who were following him. He then started to cross again, but his foot became entangled on the track, and before he could extricate himself he was run over and killed. Evidence was given tending to show that when he attempted to recross the track a rapidly approaching train was in. full view, past the fourth telegraph pole, and at a distance less than 300 feet away. Thus was presented the question of the contributory negligence of the defendant; and accordingly the court was requested to charge that “if the plaintiff’s intestate attempted to cross, with the train advancing in plain sight, and at or nearer than the fourth telegraph pole below the crossing, he was guilty of contributory negligence, and cannot recover. The Court. I leave that to the jury. It is a question of fact. The defendant’s counsel thereupon excepted.” Here,was manifest error. The question of contributory negligence, upon a conceded or supposed state of facts, is one of law for the court, (Gonzales v. Railroad Co., 38 N. Y. 440;) and it is error to submit it to the jury, (Glacius v. Black, 67 N. Y. 563.) It was the duty of the court to instruct the jury as to the law upon a predicament of fact presented by the evidence. The question involved was the vital one in the case, and we cannot say but that, had the court given the correct instruction touching it, the jury would have found that the negligence of the decedent was the cause of his death. Indeed, upon review of this very case, on appe.al from a judgment for plaintiff at a former trial, we held that the attempt of the plaintiff to cross the track under the circumstances indicated above “ was negligence on his part, whether he could or could not have crossed in safety had he not been delayed by catching his foot or stumbling, and that a motion to dismiss the complaint on the ground of his contributory negligence should have been granted.” 12 Daly, 866. And such is the law as propounded by the court of appeals. Ernst v. Railroad Co., 35 N. Y. 9; Tolman v. Railroad Co., 98 N. Y. 203, 204; McClain v. Railroad Co., 116 N. Y. 465, 22 N. E. Rep. 1062; Woodard v. Railroad Co., 106 N. Y. 369, 13 N. E. Rep. 424; Donnelly v. Railroad Co., 109 N. Y. 16, 15 N. E. Rep. 733. Other errors are apparent on the record, but the fatal effect of the one considered dispenses with the discussion of them. Judgment reversed, and new trial ordered; costs to abide the event.