Rensselaer County NyArchives Court.....Chrystal, James Walter Vs. Troy & Boston R R Co 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 28, 2008, 11:55 pm

Source: Reports Of Cases - Ny
Written: 1889

JAMES WALTER CHRYSTAL, an Infant, by JOHN W. KENNY, His Guardian ad litem, 
Respondent, v. THE TROY AND BOSTON RAILROAD COMPANY, Appellant.

Failure of a railroad company to give the statutory signals at the proper time — 
when a jury may infer that the injury might have been avoided if they had been 
given.

The plaintiff, a child seventeen months old, lived with its mother, Mrs. 
Chrystal, in the village of Hoosick Falls, on the north side of Carey avenue, 
which was crossed by the defendant's railroad at a point distant about seventy 
feet from Mrs. Chrystal's house, which stood back from the line of the avenue 
twelve feet. About half past two in the afternoon the defendant's passenger 
train left the depot in Hoosick Falls and proceeded southerly in a straight line 
towards the avenue. The plaintiff, who had in some way escaped from the house 
and out on to Carey avenue, came upon the railroad crossing, and stood there 
upon the track in front of the defendant's train. The engineer of the train 
discovered the child, when distant from it about forty rods, and used reasonable 
diligence and care to avert the peril, but did not bring the train to a stop 
until the locomotive had passed over the child, crushing one leg and two fingers.

The testimony of the mother was to the effect that after dinner she sat upon her 
door-step holding her baby in her lap; that, noticing that it was inclined to 
sleep, she entered the house, sat in a rocking-chair and nursed the child; its 
inclinations to sleep continuing, she laid it on the floor and put a chair in 
the outside door; went into an adjoining room; stayed there eight or ten 
minutes, came out and saw the child was missing; ran out of the doors into the 
back yard; looked among the growing potatoes, into the cistern; heard the 
whistle, looked and saw the approaching train; ran around to the front gate on 
Carey avenue, which was closed; looked to the crossing and saw her child; ran, 
but arrived too late.

Upon the trial of an action, brought to recover damages for the injury sustained 
by the plaintiff, evidence was given tending to show that no bell was rung or 
whistle sounded within eighty rods of Carey avenue, and that the whistle was 
blown only when the engineer commenced to stop the train.

Held, that the jury had the right to draw the inference that if the signals had 
been given in time the injury might have been avoided.

Appeal from a judgment in favor of the plaintiff, entered in the office of the 
clerk of Rensselaer county on February 24, 1888, upon the verdict of a jury 
rendered at the Rensselaer County Circuit; and, also, from an order denying a 
motion made upon the minutes of the justice presiding at the trial for a new 
trial.

E. L. Fursman, for the appellant.

R. A. Parmenter, for the respondent.

Landon, J.:

This case, to quote from the brief of the plaintiff's counsel, "contains all the 
testimony produced on the former trial, together with some additional evidence 
given in behalf of the plaintiff. The testimony on the former trial was read 
from the old printed case on the last trial."

The Court of Appeals (105 N. Y., 164) reversed the former judgment in favor of 
the plaintiff, upon the ground that the evidence did not show any negligence on 
the part of the defendant. The Court of Appeals, disclaiming all power to review 
any controverted questions of fact which had been found by the jury and 
sustained by the General Term, intimated that the General Term had failed in its 
duty in not setting aside the verdict, upon the ground that the evidence in 
exculpation of the plaintiff from negligence was "incredible, unnatural and 
contrary to human experience." As the Court of Appeals disclaims jurisdiction to 
review the weight of the evidence, its intimation lacks the force attaching to 
authority and responsibility. We, therefore, pass the question of the 
plaintiff's negligence as settled by our former decision upon the same evidence, 
reaffirmed by the verdict upon the second trial. Accepting fully the decision of 
that court that the evidence on the former trial failed to show any negligence 
on the part of the defendant, we must limit our examination to the inquiry 
whether the additional evidence tends sufficiently to show, either standing 
alone or giving to the old evidence a significance and meaning which it did not 
possess on the former trial, that the defendant's negligence caused the 
plaintiff's injury.

The plaintiff was a child seventeen months old, living with its mother, Mrs. 
Chrystal, on the north side of Carey avenue, in the the village of Hoosac Falls. 
The defendant's railroad crossed this avenue about seventy feet distant from 
Mrs. Chrystal's house. The house stood back from the line of the avenue twelve 
feet. About half-past two in the afternoon the defendant's passenger train left 
the depot in Hoosac Falls, 1,800 feet northerly of Carey avenue and proceeded 
southerly in a straight line towards the avenue. The plaintiff, who was just 
able to walk, had in some way eluded the vigilance of its mother, escaped from 
the house and out on to Carey avenue, and thence came upon the railroad crossing 
and stood there upon the track in front of the advancing train. The child was 
not sensible of its danger. The engineer of the train discovered the child when 
distant from it about forty rods, and then, to use the language of the Court of 
Appeals, did "use reasonable diligence and care to avert" the peril. The train 
was brought to a stop, but not until the locomotive had passed on or over the 
child, crushing one leg and two fingers. Upon the former trial the plaintiff's 
contention was that the defendant was negligent in not sooner stopping the 
train. That contention failing, upon this trial evidence was given tending to 
show that no bell was rung or whistle sounded within eighty rods of Carey 
avenue; and in this respect, and in no other, does the plaintiff present 
additional evidence deserving mention. When the defendant commenced to stop the 
train the whistle was blown. That the additional evidence raises the question 
whether the bell was rung or the whistle sounded "at the distance of at least, 
eighty rods from the place where the railroad shall cross any traveled road or 
street on the same level with the railroad," is not contested by the defendants' 
counsel; but his contention is that, if omitted, it is unreasonable to suppose, 
and could not, therefore, reasonably be found, that the omission to ring the 
bell or blow the whistle in any way contributed to the plaintiff's injury. 

We accept the finding that neither the bell was rung nor the whistle sounded at 
the distance of at least eighty rods from the crossing. The sole question, then, 
is whether the jury had the right to draw the inference that the omission caused 
the injury or contributed to it. It may be assumed that whether the statutory 
signals were given or not was of no importance respecting the action of the 
child, since it could not understand them. It is claimed, however, that if the 
signals had been given they would have sooner arrested the attention of the 
child's mother, and thus have called her attention to the railroad crossing in 
time for her to save her child. Mrs. Chrystal's testimony is to the effect that 
after dinner she sat upon her door step holding her baby in her lap; noticing 
that it was inclined to sleep, she entered the house; sat in a rocking chair, 
nursed the child; its inclination to sleep continuing, she laid it on the floor; 
put a chair in the outside door; went into an adjoining room; staid there eight 
or ten minutes; came out and saw the child was missing; ran out of doors into 
the back yard; looked among the growing potatoes, into the cistern; heard the 
whistle; looked and saw the approaching train; ran around to the front gate on 
Carey avenue; the gate was closed; looked to the crossing and saw her child; 
ran, but was too late. Of course, no one can surely know whether, if the bell 
had been rung or the whistle sounded eighty rods away, the mother would have 
heard or noticed, and if she had, whether her sense of danger from the railroad 
would have been so quickened as to have resulted in saving her child. The 
inference either way may be quite satisfactory to different minds equally fair. 
Hence we conclude the jury had the right to draw the inference that if the 
signals had been given in time the injury might have been avoided.

The defendant's counsel excepted to some of the responses made by the court to 
the various questions which were propounded under the form of requests to 
charge. It is obvious from the charge, and the answers to requests to charge, 
that the jury could not fail to understand that they could find no verdict 
against the defendant unless the omission to give the statutory signals caused, 
or contributed to cause, the plaintiff's injury. The court assented to the 
various requests in which this proposition was amplified, divided and 
reiterated. Various propositions extracted from the opinion of the Court of 
Appeals in this case were presented as requests and assented to. The court thus 
held that the defendant was not responsible for any error of judgment on the 
part of the engineer as to the speed of the train, its distance from the child, 
the child's age, peril, his own ability to stop the train, and that all the 
engineer was bound to do was to use reasonable diligence and care to avert the 
danger after he discovered it. The nineteenth request then was: "That there is 
no evidence in this action that he did not do this." To which the court 
responded: "I leave it as a question of fact for the jury." Now, the opinion of 
the Court of Appeals is to the effect that there is no evidence that he did not 
do this. The counsel was manifestly seeking for an exception, and he asks for a 
reversal because the court did not maintain the standard of 100 per centum upon 
an examination upon the opinion of the Court of Appeals. The ruling asked by 
counsel was not at all necessary, for the court, by making the omission to sound 
the whistle or ring the bell the necessary prerequisite of defendant's 
negligence, had, in effect, excluded every other kind of negligence, and thus 
protected the defendant upon this very question which it now unnecessarily 
introduced, and it is improbable that the response of the court weakened that 
protection.

The plaintiff's counsel asked the court to charge that the defendant was not 
relieved of the duty to ring the bell or sound the whistle under any 
circumstances. The court so charged "as an abstract proposition," thus clearly 
implying that it was of no practical importance in this case, and he soon after 
added that the failure to ring the bell or whistle would entitle the plaintiff 
to a verdict, "provided the failure tended to produce the injury."

The judgment is affirmed, with costs.

Learned, P. J., and Ingalls, J., concurred. 

Judgment and order affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/rensselaer/court/chrystal690gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 11.8 Kb