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NEGLIGENCE - Continued.

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flagman was stationed. In the river opposite Seventy-second street was a
raft and tavern frequented by fishermen and others desiring refreshment.
It further appeared that the intestate lived in Sixty-fifth street, and that
on the evening in question he had been fishing from the raft; that when
he started homeward, about half an hour after sunset, a freight train blocked
the way to the stairs at Seventy-second street; that instead of waiting for
the freight train to move he walked southerly along one of the north-bound
tracks; that at a point between Seventieth street and Sixty-ninth street he
was struck and killed by a train which was running backwards in a south-
erly direction and which had given no warning of its approach.

There were no signs forbidding people to walk upon the tracks between
Seventy-second street and Sixty-seventh street, and fishermen and visitors to
the tavern frequently walked thereon. The raft and tavern were, so far as
appeared, the only structures located west of the tracks which were not
devoted to railroad purposes.

Held, that the complaint was properly dismissed;

That the use of the tracks between Seventy-second street and Sixty.
seventh street as a pathway was merely by sufferance of the railroad com-
pany and at the risk of the persons using the same, and that the only
obligation which the railroad company owed to such persons was to refrain
from doing them wanton and willful injury;

That the fact that the intestate did not desire to wait until the freight
train, which blocked the way to the stairs at Seventy-second street, had
passed, did not justify him in making use of the tracks as a pathway to
the steps at Sixty-seventh street.

2.

GUNTHER v. N. Y. CENTRAL & H. R. R. R. Co. ...

.....

Contributory negligence - a failure to see a train in sight when
looking in that direction held to constitute contributory negligence in law.] In
an action brought to recover damages for personal injuries sustained by
the plaintiff in consequence of a collision between a wagon in which he was
riding and one of the defendant's east-bound trains, it appeared that the
highway extended substantially north and south and the railroad substan-
tially east and west; that at a distance of 250 feet west of the crossing the rail-
road tracks entered a cut 500 feet long, whose greatest depth was between 9
and 10 feet; that the physical conditions surrounding the highway were
such that, from any point in the highway within a distance of 25 feet from
the north rail of the tracks, a person approaching the crossing along the
highway from the north could see the tracks from the crossing through the
cut and for a considerable distance beyond.

The accident occurred in the daytime and the plaintiff, who approached
the crossing from the north, testified that when he came within 25 feet
thereof, he looked to the west, but did not see the train which subse-
quently collided with his wagon; that his eyesight was good and that he
could and did see the track from the crossing through the cut, a distance of
750 feet, but was prevented by the sun, which shone in his eyes, from seeing
beyond the cut.

According to the most favorable view of the plaintiff's evidence the
plaintiff's horse was traveling at the rate of two miles an hour, and the train,
which collided with his wagon, at a speed of fifty miles an hour, and, if this
testimony was true, the train, which was over 1,000 feet long, must have
been passing through the cut when the plaintiff looked.

Held, that the obligation resting upon the plaintiff to look to the west
for approaching trains required him to "look" intelligently and in such a
manner that what his vision disclosed would influence his conduct;

That, if after passing the hedge he did "look" intelligently, he, in fact,
saw the train;

That, if he did not "look" intelligently, he did not look at all;
That, in either case, the plaintiff was guilty of contributory negligence as
matter of law. SWART v. Ñ. Y. CENTRAL & H. R. R. R. Co.............

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3. Injury from a splintered portion of a car giving way while being
mounted by a brakeman to be stopped on a cripple track" the inspector
marking the defect and the brakeman are fellow servants.] In an action to
recover damages for personal injuries it appeared that the plaintiff was an
experienced brakeman employed in the yard of the defendant railroad com-

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NEGLIGENCE - Continued.

PAGE.

pany; that, as trains arrived at the yard, inspectors would examine the cars
composing the train, mark the defective cars, which were thereupon taken
out of the train and placed upon tracks known as "cripple tracks; " that,
as the defective cars were moving along the cripple track, the yard brakeman
would mount them and stop them at any desired point.

It further appeared that on the day of the accident a car marked by the
inspectors as having defective bumper bolts was sent to the cripple track:
that, as it was moving along that track, the plaintiff attempted to board it
for the purpose of braking it; that in doing so he placed his hand on a por-
tion of the body of the car which had been splintered; that the splintered
portion gave way and that he fell to the ground.

Held, that a judgment entered upon a verdict in favor of the plaintiff
should be reversed:

That the accident to the plaintiff was one which pertained to the risk
of his employment;

That the inspection of the cars was solely for the purpose of taking
defective cars out of the trains and not for the use of the defendant's
employees;

That, with respect to the inspection of the cars, the inspectors and
servants engaged in removing the defective cars were coemployees, and that
as to the manner in which the inspection should be made the defendant
owed no duty whatever to the plaintiff.

GERSTNER v. N. Y. CENTRAL & H. R. R. R. Co........

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4. Nuisance or negligence — injury from the falling of material placed
in a tenement house hall by an independent contractor engaged in work on the
front of the building — liability of the owner who neither consented nor knew of
such use of the hall.] The owner of a tenement house entered into a contract
for the making of certain alterations upon the building which included the
installation of show windows for store purposes in the front basement and
necessitated the removal of brickwork and the taking down of part of a fire
escape on the front of the building. The owner reserved no control over
the contractor, sub-contractor or the workmen of either and in no way inter-
fered with the work or gave any directions in regard thereto. The work to
be done was, so far as appeared, not, in itself, dangerous to the tenants, and
some of them remained in the building while it was being performed.

During the course of the work a sub-contractor, to whom the work of
taking down the fire escape had been sub-let, placed a portion of the removed
material in the street. A policeman having objected to this disposition of
the material, he deposited a portion of it in the hallway of the premises.
After it had remained in the hallway for a few hours, it fell upon and
injured the child of one of the tenants of the house.

It did not appear that the owner of the premises had actual or constructive
knowledge or notice that the material had been placed in the hall.

Held, that the owner was not liable for the injuries sustained by the child,
either on the theory that he was guilty of negligence or on the theory that he
maintained a nuisance;

That the negligence or nuisance, if any, was that of the employees of an
independent contractor, for which the owner was not liable.

Boss v. JARMULOWSKY..

5. Boy seven years and eight months old, run down by a street car
while chasing his companions-failure to look-negligence of parents.] In an
action brought to recover damages resulting from the death of the plain-
tiff's intestate, a boy seven years and eight months old, who was run over
by one of the defendant's street cars on Third avenue in the city of New
York, the evidence tended to show that the boy had been in the habit of
going to school unattended for at least a year; that on the day in question
he was returning from school with two comrades on the east sidewalk of
Third avenue; that the intestate's comrades took his hat and ran across the
avenue and that the intestate went in pursuit of them; that when the
intestate left the sidewalk the car, which subsequently struck him, was
from seventy to one hundred feet distant south of him, and was proceeding
rapidly; that when the first boy reached the track the car was about fifty feet
away; that the second boy was a few feet behind the first boy, and that the
intestate was about seven feet behind the second boy.

562

577

NEGLIGENCE - Continued.

PAGE.

There was no evidence that the intestate looked for approaching cars
before leaving the sidewalk.

Held, that a judgment entered upon a verdict in favor of the plaintiff
should be affirmed;

That the parents of the intestate were not guilty of negligence in allow-
ing him to be upon the street unattended;

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That it was for the jury to say whether or not the intestate was guilty of
contributory negligence in failing to look for approaching cars before he
went in pursuit of his comrades. SULLIVAN v. UNION RAILWAY CO........ 596
6. - Injury from a fall on a sidewalk in the city of Syracuse occurring
four days before the charter of cities of the second class (applicable to such city)
took effect-time within which notice must be given to the city.] December 27,
1899, a person fell upon an icy sidewalk in the city of Syracuse, sustaining
personal injuries. At that time the charter of the city of Syracuse (Laws of
1885, chap. 26, § 250, as amd. by Laws of 1888, chap. 449) provided that no
liability for such an injury should attach to the city, "unless written notice
specifying the time, place and cause of such injury or damage shall be served
on the mayor or city clerk within six months after the injury or damage
was received, nor unless an action shall be commenced within one year after
the service of such notice."

January 1, 1900, the charter of the government of cities of the second
class, to which the city of Syracuse belongs, went into effect. Section 461
of such charter (Laws of 1898, chap. 182, as amd. by Laws of 1899, chap. 581)
provided that the omission of a party claiming damages for injury to person
or property to present such claim in writing to the common council
"within three months, or to commence an action thereon within one year,
shall be a bar to any claim or action therefor against the city."

The injured person, in compliance with the statutory provisions in exist-
ence at the time of the accident, filed the notice therein specified on the 27th
day of June, 1900, nearly six months after the new charter went into opera-
tion, and brought her action against the city on the 1st day of October,
1900.

Held, that she did not lose her right to maintain the action because of her
omission to file the claim within the time specified in section 461 of the charter
of cities of the second class, as it was not intended that such section should
have a retroactive force or apply to existing cases.

SEHL v. CITY OF SYRACUSE..

7. · Horse frightened by the falling of a sign located on private ground near
a highway—care required of the owner of the sign.] An owner of land bounded
by a line eighty-five feet distant from a country highway, who constructs
thereon, fifteen feet from the boundary line, a sign twelve feet long and
twelve or fourteen feet high, owes to travelers along the highway the duty
of exercising ordinary care and caution with respect to the maintenance of
such sign.

He is not, however, liable to a person driving along the highway who
sustains personal injuries, in consequence of his horse having become fright-
ened by the falling of the sign, the braces of which had become loosened,
where it appears that at the time the sign fell a strong wind was blowing
against it.

In such a case the owner of the sign could not be expected to forecast the
uncommon occurrence which resulted in the traveler's injuries, and hence
is not liable therefor. O'SULLIVAN v. Knox..........

8. When the Supreme Court will accept jurisdiction of a negligence action
between non-residents where the accident occurred in another State.] While
the Supreme Court of the State of New York has jurisdiction of an action
brought by a resident of the State of Connecticut against another resident
of that State upon a cause of action arising in the latter State to recover
damages for personal injuries sustained by the plaintiff through the alleged
negligence of the defendant, it will decline to exercise such jurisdiction
unless special circumstances are shown to exist which require its retention.
Upon an appeal from an order made in such an action granting the plain-
tiff's motion for a new trial, the Appellate Division concluded to affirm the
order, which was properly granted, in order to permit the plaintiff to show,

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NEGLIGENCE - Continued.

PAGE.

if he could, that the defendant had changed his residence to the State of
New York or that special circumstances existed which would induce the
court to retain jurisdiction. COLLARD v. BEACH....

9. Horse frightened by an automobile occupied by the owner's son and
coachman and being managed by the former-charge as to the owner's lia-
bility.] In an action brought to recover damages for personal injuries sus-
tained by the plaintiff in consequence of the alleged negligent management
of an automobile owned by the defendant, it appeared that immediately
before the accident the defendant, accompanied by his son and his coach-
man, had gone to the railway station in the automobile and had there left
the automobile; that at the time the accident occurred the defendant's son
and coachman were the occupants of the automobile and that the son was
guiding and controlling it.

It was a disputed question whether the defendant on leaving the machine
had committed the custody thereof to his son or to his coachman.

Held, that the court might properly charge: "4th. If the jury find either
that the defendant left the automobile in charge of his son to take it home,
or in charge of his son and coachman together to take it home, or in charge
of the coachman alone, and the coachman neglected his duty in that regard
and allowed the son to run the machine, and by the negligence of the son
the accident occurred, without contributory negligence on the plaintiff's
part, then in either case the defendant is responsible and liable for that negli-
gence and its consequences." Id.

10. Evidence of the cost of an annuity equal to the earnings of a decedent
and as to the age attained by his father is incompetent.] While, in an action
brought to recover damages resulting from the death of the plaintiff's intes-
tate, the amount of the salary or earnings of the intestate and the probable
duration of his life, are competent evidence to enable the jury to estimate
the probable loss resulting to the widow or next of kin of the decedent from
his death, evidence of the amount which it will cost to purchase an annuity
equal to the amount of the decedent's income, based upon the probable
duration of his life had he not been killed, is incompetent, as the jury would
not be justified in using such sum as a basis in determining the amount
of their verdict.

Evidence of the age at which the intestate's father died is not admissible
upon the subject of the probable duration of the life of the intestate.
HINSDALE. NEW YORK, N. H. & H. R. R. Co...

11.

582

- Insistance, after a ruling to the contrary, in bringing to the atten-
tion of a jury matter calculated to prejudice the case — - it is a sufficient ground
for reversing a judgment.] In an action to recover damages for personal
injuries sustained by the plaintiff through the alleged negligence of the
defendant, it is improper to show that the defendant is insured against loss
in case of a recovery by the plaintiff, and where the plaintiff's counsel, after
the court has so ruled, persists in placing that fact before the jury by the
following question: "Didn't Dr. Rockwell go there to try and settle with
Manigold, and wasn't he representing the insurance company back of this
company?" a judgment entered upon a verdict in favor of the plaintiff will
be reversed, even though the court struck out the question and instructed
the jury to disregard it, unless it is made to appear that the improper state-
ment did not influence the verdict rendered.

MANIGOLD v. BLACK RIVER TRACTION Co.................

12. Burden of proof in a negligence case.] In such an action the burden
of proving that the defendant was guilty of negligence and that the plaintiff
was free from contributory negligence rests upon the plaintiff from the
beginning to the close of the trial, and does not, at any stage of the trial,
shift to the defendant. Id.

13. Standing near one track, while the noise and smoke of a train approach-
ing on the other track obscure the signal and headlight of a train on the former
one.] It is a negligent act for a person approaching a railroad crossing to
stand upon the main south-bound track or sufficiently near it to be struck by
a south bound passenger train, when he knows that such train is about
due, and that the noise of a north-bound freight then passing over the cross-
ing will prevent him from hearing any signal of the approach of the passen-

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NEGLIGENCE - Continued.

PAGE.

ger train and that the smoke emanating from the freight train will obscure,
and may prevent him from seeing, the headlight of the passenger train.

MEINRENKEN v. N. Y. C. & H. R. R. R. Co

14. -- Verdict set aside although the case was properly submitted to the jury.]
When a verdict rendered against a railroad company in an action to recover
damages resulting from the death of a person struck and killed by one of
its trains should be set aside as against the weight of the evidence and con-
trary to the probabilities of the case, although the evidence may have been
sufficient to require the case to be submitted to the jury, considered. Id.

15. A release must be explicit in terms.] A limitation upon the com-
mon-law liability of a common carrier, either of freight or passengers, for
its negligent acts must, in order to be effective, be expressed in language so
piain and unequivocal that it may readily be comprehended by any one.

Dow . SYRACUSE, LAKESIDE & B. RAILWAY..

- Evidence-reading from a medical work and asking a physician
whether the statements therein accord with his experience.
PAHL v. TROY CITY RAILWAY Co......

See EVIDENCE.

NEGOTIABLE PAPER- Law relating to.

See BILLS AND NOTES.

NEW TRIAL-Insistance, after a ruling to the contrary, in bringing to
the attention of a jury matter calculated to prejudice the case-it is a suffi-
cient ground for reversing a judgment - burden of proof in a negligence
MANIGOLD . BLACK RIVER TRACTION CO......

case.

ment

-

See NEGLIGENCE.

Amendment of a complaint after the entry of an interlocutory judg-
it necessarily involves a new trial.
WILSON V. STANDARD ASPHALT Co.....

See PLEADING.

132

362

308

381

102

66

Stay costs allowed on an appeal from an order granting a new trial
are costs of a motion." COHEN v. KRULEWITCH.....

147

See STAY.

NEW YORK CITY — Permit to sell milk in the city of New York-section
66 of the Sanitary Code was made valid by section 1172 of the revised charter ·
the Legislature had power to authorize its enactment unjust discrimination is
not authorized by it· - presumption in favor of the action of the board of health
test of statutes and ordinances enacted under the police power.
See PEOPLE EX REL. LIEBERMAN v. VANDECARR

-

Change of grade of a street in New York city—measure of damage to a
building on an abutting lot effect of the street having been dedicated for street
purposes damages where the land is burdened with easements of passage
granted to individuals.

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See MATTER OF MAYOR (TRINITY AVENUE)..

Tax-collection of, in New York city-the discretionary power given
by section 934 of the charter relates to contempt proceedings, not to actions to
enforce the tax.

128

215

See CITY OF NEW YORK v. MCCALDIN BROS. CO
Grade and pay of a member of the New York park police transferred
under the charter of Greater New York to the force of the consolidated city.
See BENNETT v. CITY OF NEW YORK..

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Measure of damages to which lessees are entitled where the demised prem-

ises are taken by the city of New York for street purposes.

See MATTER OF CITY OF NEW YORK (110TH STREET)..

27

Railroad-construction of, in New York city.

See PEOPLE EX REL. N. Y., N. H. & H. R. R. Co. v. COмRS....

242

NEW YORK STATE CONSTITUTION:

See CONSTITUTIONAL LAW.

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