Green v. Erie Railway Co. , 18 N.Y. Sup. Ct. 333 ( 1877 )

Gilbert, J.:

The general rule, no doubt, is that the plaintiff, in an action for negligence, cannot succeed if it is found by the jury that he himself had been guilty of negligence or want of ordinary care, which contributed to cause the accident. But this rule, in many cases, is qualified by another one, which is that though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiffs negligence will not excuse him. (Radley and or. v. The Lond. and N. W. R. Co., Law Rep., 1 App. Cases, 754, 759 ; Kenyon v. The N. Y. C., etc., R. Co., 5 Hun, 479, and cases cited.) We think it was a proper question for the jury, whether the defendant was not guilty of such gross negligence as was equivalent to intentional mischief.

The provision made for passengers arriving at Otisville by a westward bound train, are extremely dangerous. In going from the cars to the station they are obliged to cross the track on which eastward bound trains are propelled. To send into the station an eastward bound train at the moment passengers by a westward bound train were alighting from the cars and seeking egress from the station, certainly, evinced a reckless indifference to the safety of the passengers.

The plaintiffs, however, were nonsuited, on the ground that the deceased was guilty of contributive negligence, because he made no effort to ascertain whether a train of cars was approaching from the west. No witness testified that he did not make that effort. Whether he did or not, depends upon inferences to be drawn from other facts, which are not in their nature conclusive. In .such a case it is the province of the jury and not that of the court, to draw the inferences.

The nonsuit was clearly erroneous ; and for that reason the judgment must be reversed and anew trial granted, with costs to abide the event.

Barnard, P. <L, concurred; Dyjqian, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.