Weed v. New York Cent. & H. R. Railroad , 98 N.Y. Sup. Ct. 293 ( 1895 )

PRATT, J.

This was an action for damages for personal injuries caused by plaintiff being run into by a south-bound train of defendants on the West Shore Railroad. The action was tried before a jury, and a verdict rendered for defendants. The case was submitted to the jury under a fair and unexceptionable charge, and there is no exception in the case disclosing error sufficient to warrant a reversal of the judgment.

The principal point made by the plaintiff to establish his case was that the gate was not manned and worked at the place where the highway crossed the track where the plaintiff was injured. The answer to this proposition, as well as to the cases cited upon this point, is made by the fact that appeared upon the trial, that defendants were not accustomed to operate the gate between 7 o’clock in the morning and 7:30 p. m., and this fact was known to the plaintiff, who was accustomed to cross the railroad at this point; therefore, those cases that hold a failure to shut the gate may be considered by the jury, as mentioned, as proof of negligence and contributory negligence, are not in point upon the case here. All these latter-named cases, which are of a similar character, have been the result of accidents taking place while gates were in operation, and the injury was inflicted upon persons not familiar with the locality.

We think the verdict was fully supported by the evidence, and ought to stand. Judgment affirmed, with costs. All concur.