text:
    Johan G. Johnson, as Administrator, etc., of Fritz G. Johnson, Deceased, Respondent, v. The Long Island Railroad Company, Appellant.

      Damages for a negligent hilling — verdict, not disturbed by the cowi't — when not excessive— change as to measune of damages.

    On an appeal from a judgment entered in an action brought to recover damages resulting from tbe death of the plaintiff’s intestate, the General Term has power to review the determination of a jury as to the amount of damages awarded by it, but it is only in rare instances that the verdict of a jury in such cases will be interfered with.
    Five thousand dollars is not an excessive sum for a jury to award as damages for taking the life of a healthy man, unmarried and of the age of thirty-three years, who was engaged in making pianos for his father, with whom he resided, although he was paid no fixed wages, but such amounts as his father deemed proper.
    Upon the trial of an action brought to recover damages for the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it is proper for the court to charge the jury, on the question of damages, that it may look ahead and consider what the deceased would have brought to his next of kin while he was living and what was their prospect of inheriting from him after his death.
    Appeal by tbe defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of January, 1894, upon tlie verdict of a jury rendered after a trial at the Queens Oounty Circuit, and also from an order made at the Queens County Circuit on the 17th. day of January, 1894, and entered in said clerk’s office denying the defendant’s motion for a new trial.

      W. O. Beecher, for the appellant.

      J. Edwa/rd Swcmstrom, for the respondent.
   Cullen, J.:

This is an appeal from a judgment entered upon the verdict of the jury at Circuit and from an order denying defendant’s motion for a new trial. The action is for damages in causing the death of plaintiff’s intestate, a passenger on defendant’s railroad. No question is made that the issue of defendant’s liability was not properly for the jury, but we are asked to reverse the judgment on the ground that the damages are excessive and for alleged errors of the court in its charge to the jury on this subject.

There can be no doubt as to the power of this court to review the determination of the jury as to the amount of damages. Reference to the amount of recovery in other cases is, therefore, made, not as establishing a rule of law controlling our action, but as evidencing the common judgment or.opinion of courts on this subject. The deceased was a single man thirty-three years old and worked in making pianos for the plaintiff, his father, with whom he resided. He was paid no fixed wages, but such amounts as the father deemed proper. The amount of the recovery was $5,000. It is only in rare instances that the courts should interfere with the verdict of a jury in this class of cases. We cannot say that $5,000 is an excessive sum for the life of a healthy man df the age of deceased, considering the relations existing between the father and son. It certainly does not contrast unfavorably with other recoveries. In Tilley v. Hudson R. R. Co. (29 N. Y. 252), for the death of a married woman leaving a husband and children, managing the household, but the source of no earnings or revenue, the recovery was $5,000. In Ihl v. Forty-second Street R. R. Co. (47 N. Y. 317), for the death of a child three years old, the recovery was $1,800. In Houghkirk v. Delaware & Hudson Canal Co. (92 N. Y. 219), for a child aged six, the recovery was $5,000. In Bierbauer v. New York Central R. R. Co. (15 Hun, 559) a recovery of $5,000 by a father for the death of a son aged twenty-one years, and earning twenty-five dollars a month, was upheld by a majority of the court.

The court on the trial charged the jury that it might look ahead and consider what the deceased would have brought to his next of kin while living, and what was their prospect of inheriting from him when dead. To the latter part of this charge exception was taken. The charge in this respect is justified by authority. In Ihl v. Forty-second Street R. R. Co.. (suprai) it is said by Judge Rapallo : “It was within the province of the jury * * * to form an estimate of the damages with reference to pecuniary injury, present or prospective, resulting to the next of kin. * * * The statute does not limit the recovery to the actual pecuniary loss proved on the trial.”

■ In McIntyre v. M. T. C. R. R. Co. (31 N. Y. 290) it was held: “ The statute has set no bounds to the sources of these pecuniary injuries.” In Birlcett v. Kniclcerbocher Ice Compomy (110 N. Y. 501) Judge Earl writes: “ In estimating the pecuniary value of this child to her next of kin, the jury could take into consideration all the probable or even possible benefits which might result to them from her life, modified, as in their estimate they should be, by all the chances of failure and misfortune.”

The prospect of the deceased accumulating property and the next of kin inheriting from him is not more speculative than the expectation of his acquiring money and the next of kin sharing in his bounty or beneficence while he should live.

The two exceptions to the admission oi evidence are not well taken. The questions put to the witness at folios 111 and 116 were legitimate cross-examinations and tended to contradict his testimony as to the prohable cause of the accident which caused the death of the intestate.

The judgment and order denying new trial should be affirmed, with costs.

Brown, P. J., and .Dykman, J., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Cullen, J.:

license: Public Domain

text:
    Daniel Bahr, Respondent, v. The National Fire Insurance Company of Hartford, Connecticut, Appellant.

      Policy of fire insurance — stipulation as to the location of the a/rticles insured.

    Where a policy insuring personal property against fire contains a stipulation that the property is insured only “while located as described herein, and not elsewhere, to wit, * * * while contained” in a certain building, the provision as to the location of the insured property is a warranty, a breach of which avoids the policy.
    Appeal by the defendant, The National Fire Insurance Company of Hartford, Connecticut, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1894, upon the decision of the court affirming the judgment of a justice of the peace of the city of Brooklyn, Kings county.

      Magner <& Hughes, for the appellant.

      Moffett <& Kramer, for the respondent.
   Cullen, J.:

This is an appeal from a judgment of the County Court affirming a judgment for the plaintiff by a justice of the peace of Brooklyn. The action was to recover $200, the insurance on a carriage. The defendant’s policy insured plaintiff on the carriage “ while located and contained as described herein and not elsewhere, to wit: * * * while contained in the frame building occupied as a wheelwright shop on the south side of Grand street, about sixty feet east of Lagrange street, known as Nos. 884-6 Grand St.” The carriage was burned in a livery stable and horse shoeing shop, No. 856 Grand street, about a block and a half away from the place named in the policy. This judgment cannot stand. The location of the insured property was a warranty, a breach of which avoided the policy. (Bryce v. Ins. Co., 55 N. Y. 240.)

The respondent argues this case upon the theory of a mistake in the description of the premises made in the policy. I cannot find the slightest evidence of that fact. The only testimony as to the information given to the defendant when the policy was applied for is that of the defendant’s agent. He says that the location inserted in the policy is the location stated to him. There is nothing to show that the place where the fire occurred is the place intended to be described in the policy. For aught that aj>pears in the evidence there may be a wheelwright’s shop at the exact location and bearing the street numbers named in the policy.

The judgment of the County Court should be reversed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment reversed, with costs.


author: Dykman, J.:

text:
    Charles A. Hedges and Another, Appellants and Respondents, v. The West Shore Railroad Company and Another, Respondents and Appellants.

      Hudson river — rights of upland owners hewing title to high-water mark — conveyance to a railroad of land along the river bank — rights remaining in the riparian owner— damages for future injuries which may be caused by the railroad, not recoverable.

    An upland owner, whose legal title extends to high-water mark upon a navigable stream of water, has property rights therein incident to his riparian proprietorship which constitute property within the meaning of the fundamental law, and of which he cannot be deprived without just compensation. Among such rights are access to the navigable part of the stream from the front of his land, and the right to construct a wharf for his own use or for the use of the public.
    The fact that the owner of land bounded by a navigable river has conveyed to a railroad company, for the use of its road, a strip of the land along the water front, over which its route runs, does not deprive him of the character of a riparian owner, within the meaning of the statute in reference to grants of lands under water, nor does it give to the company that character. Although the title granted to the company is a fee, it holds and can only use the land for the purposes of its road.
    The Hudson river is viewed as a great public thoroughfare, and the rights of riparian proprietors upon such river are similar to the rights of abutting landowners upon public streets.
    In an action brought to recover damages caused by the maintenance and operation of a steam railroad, and to obtain an injunction restraining the operation of the same, it is erroneous to insert in the judgment in favor of the plaintiff a provision requiring the plaintiff to release the defendant from all future damages to be incurred from the maintenance and operation of such railroad, as the same may be thereafter changed; no damages can be allowed for future injuries.

      Cross-appeals by the plaintiffs, Charles A. Hedges and another, from portions of, and by the defendants, The West Shore Railroad Company and another, from the whole of, a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 14th day of December, 1893, upon the decision of the court rendered after a trial at the Orange Special Term, adjudging that the plaintiffs recover the fee damages sustained by certain real estate through the operation of the defendants’ railroad, and providing for the issuance of an injunction against the defendants in case of the non-payment of such damages, and directing the plaintiffs, upon the payment thereof, to release to the defendants the right to use certain waters and the land thereunder, and to release to the defendants all future damages to be incurred by the plaintiffs from the maintenance and operation of such railroad as the same was then constructed, or as it should be thereafter changed.

      George W. Weiant and Andrew 8hilam.d, Jr., for the plaintiffs, appellants and respondents.

      Edma/rd Winslow Paige, for the defendants, respondents and appellants.
   Dykman, J.:

As the law is now settled in this State, an upland owner, whose legal title extends to high-water mark upon a navigable stream of water, has property rights therein incident to his riparian proprietorship, which constitute property within the meaning of the fundamental law, of which he cannot be deprived without just compensation.

Among such rights are access to the navigable part of the stream from the front of his land, and the right to construct a wharf for his own use, or for the use of the public. (Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79.)

Another principle equally well settled is this : “ The fact that the owner of land bounded by a navigable river has conveyed to a railroad company for the use of its road a strip of the land along the water front over which its route runs, does not deprive him of the character of riparian owner, within the meaning of the statute in reference to grants of lands under water, nor does it give to the company that character. Although the title granted to the company is a fee, it holds and can only use the land for the purposes of its road.” (N. Y. C., etc., R. R. Co. v. Aldridge, 135 N. Y. 83.)

These two principles will furnish material aid in the determination of this appeal. The plaintiffs are the owners of a parcel of land in the town of Cornwall on the westerly shore of the Hudson river, and they have also obtained from the Commissioners of the Land Office of this State a grant of land under the waters of the Hudson river in front of their premises.

Upon the upland premises the plaintiffs have constructed a brick yard, and all the structures and appliances appropriate to the manufacture of brick, and they have conducted that business there for several years last past. The plaintiffs received their title to the upland in 1886, and their water grant in 1887.

In 1882 the New York, West Shore and Buffalo Railway Company, the predecessor of the West Shore Railroad Company, constructed a railroad along the Hudson river in front of the lands of the plaintiffs, and between them and the navigable waters of the river. The road is so constructed as to obstruct the access to the river from the premises of the jjlaintiffs.

The West Shore Railroad Company has succeeded to the rights of-the corporation which constructed the railroad, and is subject to all the obligations and duties imposed upon railroad companies incorporated.

The defendant, the New York Central and Hudson River Railroad Company, is the lessee of the road from the West Shore Company, and now operates the railroad.

This action is brought for the purpose of restraining the operation of the railroad, and recovering the damages which have resulted therefrom.

The cause has been tried before a judge without a jury, and a judgment rendered in favor of the plaintiffs for $1,750 damages in the use of the brick yard, and $9,000 damages to the fee of the premises. The judgment declares that the plaintiffs are entitled to an injunction restraining the defendants from the further maintenance of the obstruction to the access to the Hudson river; but in case the defendants pay or tender to the plaintiffs such sum, with interest, then the injunction is not to issue, and then the plaintiffs must deliver to the'defendants a release conveying to the defendants ■the right to use the waters and the lands under water within the boundaries of the lands granted by the People of the State to the defendants for the maintenance and operation of their railroad as the same is now constructed or shall be hereafter changed, and a release of all future damages to be incurred by the plaintiffs from the maintenance and operation of said railroad as the same is now constructed and as it shall be hereafter changed.

The defendants have appealed from the entire judgment, and the plaintiffs have appealed from that portion of the judgment which directs them to release to the defendants the right to use the waters .and the land as the same shall be hereafter changed, and to release all future damages resulting from the maintenance and operation, of the railroad as the same shall be hereafter changed.

There was a claim for damages to a piece of property called Sloop Hill, but the claim was rejected by the trial court, and the plaintiffs have not appealed from that portion of the decision. We, therefore, make no mention of the claim or its rejection.

In relation to the appeal of the defendants which involves the merits of the action, it is only necessary to say that the first principle laid down at the head of this opinion is sufficient for the maintenance of this action.

The Hudson river is viewed as a great public thoroughfare, and the rights of riparian proprietors upon that river and the rights of .abutting landowners upon public streets are regarded as similar, and the rights pertaining to each are considered the same.

Commencing with the /Story case and continuing through the numerous cases against the elevated railroads, and the JRumsey cases and the Aldridge cases, the questions have all been examined with a fertility of learning and reasoning, and a wealth of illustration which have exhausted the subject. This case falls within the principles of those decisions.

The plaintiffs had a right of access to the river from their property, and the railroad was an obstruction and an impairment of such right, and caused, damages to the plaintiffs in the prosecution of their business; and diminished the value of their property. The amount of both sorts of damage has been assessed by the trial judge in amounts which are reasonable. Our conclusion, therefore, is that the appeal of the defendants presents no error.

We think, howevel-, that the trial judge has required too much from the plaintiffs in directing them to release to the defendants all future damages to be incurred from the maintenance and operation of the railroad as the same shall hereafter be changed.

That requirement is not in harmony with the theory upon which the damages were assessed. The fee damages were awarded to the plaintiffs as compensation for the injury already inflicted by the obstruction as it existed prior to and at the time of the commencement of the action.

The provision requires the plaintiffs to release the defendants from damages which may result from any change of the structure, however injurious it may be. That seems to be inequitable. No damages have been allowed for future injuries, and none could be.

The Lahr Case (104 N. Y. 287) holds that abutters upon public streets are entitled to such damages as they may have sustained by reason of the invasion of the street by the elevated railroad, and such is the rule established in that class of cases.

We have found no case which authorizes such a provision in regard to future injuries in a judgment, and we have been referred to none.

The judgment should be modified by striking out that portion of the judgment, and, as so modified, affirmed, with costs to the plaintiffs.

Cullen, J., concurred ; Brown, P. J., not sitting.

Judgment modified by striking out the provision requiring the plaintiffs to execute and deliver to defendants a release of all further damages, and, as modified, affirmed, with costs to the plaintiffs.


text:
    In the Matter of Proving the Last Will and Testament and Codicil of Henderson Journeay, Deceased.

      What constitutes undue influence.

    Unless solicitation and importunity are carried so far as to prevent the free exercise of volition on the part of a testator they do not constitute coercion, or what the law terms undue influence.
    Appeal by Abigail Journeay and another, heirs at law and next of kin of Henderson Journeay, .deceased, from portions of a decree of the Surrogate’s Court of the county of Richmond, entered in the Richmond County Surrogate’s Court on the 15th day of May, 1893, admitting to probate the will and codicil of Henderson Journeay, deceased, and dismissing the objections of the appellants to the probate of the codicil.

      Louis 8. Phillips, fox the appellants, Abigail Journeay and Susan Sprague.

      Galvin P. Van Name and Sidney F. Pcmson, for Mary L. Engelbrecht, respondent.
   Dykman, J.:

This is an appeal from the decree of the surrogate of Richmond county admitting to probate the last will and testament and codicil of Henderson Journeay, deceased.

There were no objections filed against the will, and the contest arose over the codicil alone.

The will was dated November 15, 1881, and the codicil bears date September 11, 1891. Both instruments were executed after the testator became blind, and he died in December, 1891, in the eighty-third year of his life.

The objections to the codicil were that its execution was not the unconstrained act of th'e testator ; that the same was not subscribed and published according to the statute, and that the testator was not at that time of sound mind.

The testimony on the part of the contestants was directed to the question of undue influence, but it fell far short of proving the destruction of free agency.

Unless solicitation and importunity are carried so far as to prevent the free exercise of volition tbey do not constitute coercion, or wbat the law terms undue influence.

The proof of the strained relations between the testator and some of the members of his family has but slight weight or influence in. the case.

The testator was an 'old man, and quite feeble both in body and mind, but he was not imbecile; and the whole testimony shows him' to -have been in the possession of his faculties down to the very last day of his life.

We think the testimony was sufficient to justify the decree admitting the will and the codicil to probate, and we find no legal errors. We cannot, however, concur with the surrogate upon the question of costs.

While there is always ill-feeling, and perhaps improper motives, attending a controversy over a will, yet we cannot discover sufficient reason for charging the contestants with costs, and wTe think the decree should be so modified as to make the costs payable out of the estate, and, as so modified, affirmed.

Brown, P. J., and Cullen, J., concurred.

Decree modified so as to direct the costs to be paid out of the estate, and, as modified, affirmed, with costs of appeal to all parties, payable out of the estate.


author: Brown, P. J.:

text:
    Catharine Fothergill, Respondent, v. William Fothergill and Others, Respondents; Susan Field and Others, Appellants.

      Construction of a will — how the testator’s meaning may he ascertained.

    While it is always permissible to ascertain a testator’s meaning from an examination of the whole will, it is never permissible to refer to a clause, the meaning of which is doubtful, for the sole purpose of obscuring that which is clear.
    A testator left a will in which appeared a clause of which the following is a copy: “After all my lawful debts are paid and discharged, I give and bequeath to Ann Fothergill, my wife, all my real and personal estate, and any other property belonging to me, the said John Fothergill, to use and own during her lifetime, consisting of real estate in Jersey City, Known as 131 Railroad avenue, also those lots and houses, known as Neperan avenue, in the town of Yonkers, "Westchester county, New York, if the said Ann Fothergill survives me, and then at her demise, to be left as follows : And the said Ann Fothergill, she has free and full liberty to grant and give or bequeath one-third of the entire estate to whomsoever she thinks proper, and the two-thirds or balance of the estate to be left and equally divided among my brothers and 'sisters of the said John Fothergill. Also, I publish and declare that if my wife, Ann Fothergill, should marry again after my death all the above-named property belonging to me shall pass from her to my brothers and sisters in equal parts, excepting her right of dower, or one-third of the entire estate, for her use, to hold and dispose as she thinks proper, as it is stated in foregoing part of this will.”

      Held, that the use of the expressions “ one-third of the entire estate” and “ the two-thirds, or balance of the estate,” included all the property possessed by the testator, and that there was in the language no possible justification for the claim that the power granted to the widow was confined to any less estate than one-third of the fee, provided the widow survived her husband and did not remarry;
    That the devise of one-third of the estate by the will of the widow was valid and passed title to the same, as she had not remarried after the death of her husband.
    Appeal by tbe defendants, Susan Field and others, from an interlocutory judgment in partition of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 2Jth day of March, 1894, upon the decision of the court rendered after a trial at the Westchester Special Term.

      Thomas W. Butts, John W. Alexander and Edwvn G. Mott, for the appellants.

      Ralph E. Prime, Jr., and William G. Prime, for the respondents.
   Brown, P. J.:

This action is brought for the partition of real estate situated in the city of Yonkers, Westchester county. John Fothergill is the common source of title, and the only question presented on this appeal relates to the construction to be given to his will.

The material part is as follows:

First. After all my lawful debts are paid and discharged, I give and bequeath to Ann Fothergill, my wife, all my real and personal estate, and any other property belonging to me, the said John Fothergill, to use and own during her lifetime, consisting of real estate in Jersey City, known as 131 Railroad avenue, also those lots and houses, known as Neperan avenue, in the town of Yonkers, Westchester county, New York, if the said. Ann Fothergill survives me, and then at her demise, to be left as follows: And the said Ann Fothergill, she has free and full liberty to grant and give or bequeath one-third of the entire estate to whomsoever she thinks proper, and the two-thirds or balance of the estate to be left and equally divided among my brothers and sisters of the said John Fothergill. Also, I publish and deplare that if my wife, Ann Fothergill, should marry again after my death, all the above-named property belonging to me shall pass from her to my brothers and sisters in equal parts, excepting her right of dower, or one-third of the entire estate, for her use, to hold and dispose as she thinks proper, as it is stated in foregoing part of this will.”

Ann Fothergill survived her husband and never remarried. She died in December, 1891, leaving a last will and testament, in which, after reciting the power given to her by her husband’s will, she devised one-third of his entire estate. The appellants claim title under that devise.

The learned trial court held that under her husband’s will Ann Fothergill “became seized and possessed as devisee of an estate for her natural life in the whole of the lands and premises ” mentioned in the will, “ and took no other right, title, interest or 'estate therein of any nature whatsoever,” and upon her death “ all the right, title and interest in said land and premises passing to her by and under said will ceased and determined.” And he refused to find that she had a valid power of appointment of one-third of all the property of which her husband died seized.

The judgment consequently determined that the appellants, who are the appointees of Ann Fothergill, had no interest or estate in •the property which is the subject of the action.

No opinion was written at the Special Term, and we are not informed of the reason for the conclusion reached by the court, but the respondents seek to sustain the judgment by reference to the disposition made of the estate in case Ann Fothergill remarried, and because the testator there used the expression “ her right of dower, or one-third of the estate,” it is claimed that the one-third of the real property, which by the preceding clause she was empowered to dispose of, was “ her right of dower.” That we may not misstate the argument addressed to us we quote' from the respondent’s brief. “ Point Y. He further says: £ And the said Ann Fothergill, she has free and full liberty to grant, give and bequeath one-third of the entire estate to whomsoever she thinks proper.’ He does not give it; she has it. He is clearly referring to a fact, an existing condition, outside of the will, not created by virtue of, but independent of the will, and existing beyond his qontrol or power to change. * * * What was the £one-tliird ’ here referred to ? Manifestly her right of dower in the real estate, and her absolute right to one-third of the personalty passing by the will. * 'x' * Flis scheme for the disposition of the estate was simply this: By his gift his Avife, during her AvidoAvhood, was to enjoy an estate for her life in ■all his property, to which he enlarged her dower right, which she had as a matter of law; on her remarriage all was to pass from her to his brothers and sisters, excepting only this right of dower, or £ one-third ’ over which he had no control.”

££ Point YIII. * * * What he had in his mind is not a ■division by his own act of the estate into thirds, one of which he, by his own act, gives to his widow absolutely, and the other two to his brothers and sisters; but rather the effect of the law upon the estate, caiwing it into dower, his widow’s right, which he could not affect or change by any act on his part, and balance, which was .all he could dispose of, -and which, upon the termination of the life estate, he intended should go to and be divided among his brothers and sisters.”

This argument, we think, has no support in the language of the will. The testator intended to provide for his wife ffrst, in case she remained his widow, and second, in case she remarried.

In reference to the first condition the language of the will is so plain and simple that it is absolutely impossible to mistake its meaning. In apt and appropriate words the testator gives to his Avife, should she suiwive him, all his property ££ to use and own during her lifetime.” Hpon her death it is ££ to be left as follows: ” Full and free liberty is given to his wife “ to grant, give or bequeath one-third of the entire estate to whomsoever she thinks proper, and the two-thirds or balance of the estate to be left and equally divided among my brothers and sisters.” The use of the expressions ££ one-third of the entire estate ” and “ the two-thirds, or balance of the estate,” included all the property possessed by the testator, and there can be no possible justification in this language for the claim that the power granted to the widow was confined to any less estate than one-third of the fee. There is no occasio'n to refer to the latter clause of the provision where reference is made to “right of dower.” The contingency there provided for never arose, and that part of the will never became operative. Assume that there is doubt and uncertainty about the meaning of the sentence “ right of dower, or one-third of the entire estate,” we have no occasion to elucidate or define it. It stands alone, applicable only to a contingency which never has and never can arise. "While it is always permissible to ascertain a testator's meaning from an examination of the whole will, it is never permissible to refer to a clause the meaning of which is doubtful, for the sole purpose of obscuring that which is clear.

We are of the opinion that the. devise of one-third of the estate by the will of Ann Fothergill was valid, and that the appellants are entitled to such estates in the land as they respectively have under that devise.

The judgment must be modified by awarding to them such estates in the land, and as so modified affirmed, with costs to the appellants, payable out of the fund.

The order to be settled on notice by either judge of this court.

Cullen, J., concurred; Dykman, J., not sitting.

Judgment modified, and as modified affirmed, with costs to the appellants, payable out of the fund. Order to be settled on motion by either judge of this court. .


text:
    Charles H. Clark, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.

      Damages for personal injuries — contributory negligence.

    Upon the trial of an action, brought to recover damages for personal injuries, it was shown that the plaintiff, an employee of the defendant, while giving necessary signals to the engineer of a train which was being loaded with crushed stone, stood, for from four to six minutes, on the main track of the defendant’s steam railroad where he was run over by ah engine and sustained the injuries complained of.

      He testified upon the trial that he did not know that he stood upon the track; he did know that the tracks were there and that engines and trains were constantly passing that point. He was not directed to go there, and there was nothing to interfere with his observation in each direction.

      Held, that the accident was the result of carelessness of the grossest kind, for which the plaintiff had no one to blame but himself.
    Appeal by the plaintiff, Charles IL Clark, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 20th day of July, 1893, upon the dismissal of the complaint directed by the court after a trial at the Orange Circuit before the court and a jury.

      LoJm W. Lyon, for the appellant.

      Lewis JE. Qa/rr, for the respondent.
   Brown, P. J.:

The complaint in this action was properly dismissed upon the ground of the plaintiff’s contributory negligence.

The plaintiff was a brakeman who had been employed by defendant three or four months prior to the accident.

On March 4, 1887, he was assigned to work at a stone crusher near Otisville. A train of ears was being loaded with crushed stone and stood upon a switch north of the two main tracks. The road at that point was through a rock cut and the crusher stood on the rocks immediately north of the switch. ( The stone was loaded on to the cars through a shute.

In order to make the load as nearly level as possible, it was necessary to move the cars about two feet at a time, and in order to do that plaintiff was stationed on the car to give the necessary signals to the engineer. After the first car was loaded, finding that the dust from the crusher interfered with his seeing the engineer, plaintiff got down from the car on to the main tracks. From there his line of vision was clear. He stood there four or six minutes, when he was run over by an engine going west, and received the injuries complained of. It appeared that plaintiff stood on the west-bound track, and he testified that he did not know that fact, but obviously his failure to know it was the result of the utmost indifference to his surroundings and his safety. He knew the tracks were there, and that engines and trains were constantly passing that point, yet he failed totally to observe' whether he stood on or between the tracks. No one had directed him to go there, and there was nothing to interfere with his observation in each direction.

Intent upon his work, he failed to observe the dangerous position that he occupied or the approach of an engine in full view. The accident was the result of carelessness of the grossest kind, for which plaintiff has no one to blame but himself.

The judgment is affirmed, with costs.

Dykman, J., concurred; Cullen, J., not sitting.

Judgmept affirmed, with costs.