Haring v. New-York & Erie Railroad

By the Court, Barculo, J.

The undisputed evidence introduced by the plaintiff, established the fact that her deceased husband, whose death is the subject of the action, was riding in a sleigh with another person) who was driving at the rapid rate of a mile in four or five minutes, across the track of the railroad when the collision occurred. It also appeared that near the point of intersection, high embankments between the railroad, and highway, render it impossible for a person on the highway to see the cars coming until he gets on the track. Upon this state of facts, the simple question was presented to the circuit judge, whether such fast driving at such a place, constituted a degree of negligence that defeated the plaintiff’s right of recovery.

That the deceased was guilty of negligence, cannot for a moment be doubted. A man who rushes headlong against a locomotive engine, without using the ordinary means of discovering his danger, cannot be said to exercise ordinary care. And the rule is well settled that where the carelessness and imprudence of the person injured, contributed to the injury, an action for damages cannot be sustained. (Rathbun v. Payne, 19 Wend. 399. Hartfield v. Roper, 21 Wend. 615. Spencer v. The Utica and Schenectady Railroad Company, 5 Barb. 337. Brand, v. The Troy and Schenectady Railroad Company, 8 Id. 368.)

But it is contended by the counsel for the plaintiff, that the question of negligence should have been submitted to the jury. This would have been true, if there had been conflicting evidence, or if the proofs had left the matter in doubt. But when, upon the plaintiff’s own showing, he has no cause of action, or has defeated his claim by his own misconduct, there can be no propriety in requiring the jury to pass upon the evidence. For if the jury should find a verdict against the law, the court would be bound to set it aside. In most cases, the result would be the same: for juries ordinarily find according to the direction or intimation of the circuit judge, where there is a strong preponderance of testimony. But there are cases in which this conformity of opinion may not exist. We can not shut our eyes to the fact that in certain controversies between the weak and the strong—between a humble individual and a gigantic corporation, the sympathies of the human mind naturally, honestly and generously, run to the assistance and support of the feeble, and apparently oppressed; and that compassion will sometimes exercise over the deliberations of a jury, an influence which, however honorable to them as philanthropists, is wholly inconsistent with the principles of law and the ends of justice. There, is therefore, a manifest propriety in withdrawing from the consideration of the jury, those cases in which the plaintiff fails to show a right of recovery.

[Kings General Term, April 5, 1852.

Morse, Barculo and S. B. Strong, Justices.]

This is by no means a new rule. In Stuart v. Simpson, (1 Wend. 376,) Chief Justice Savage says, “If the.evidence would not authorize a jury to find a verdict fot the plaintiff, or the court would set it aside if so found, as contrary to evidence, in such cases it is the duty of the court to nonsuit the plaintiff.” So in the case of Hartfield v. Roper, (21 Wend. 615,) which was an action for running over an infant child while it was playing in the highway, the court held that the circuit judge erred in refusing to nonsuit the plaintiff, and granted a new trial, without requiring the payment of costs.

I am not, however', prepared to subscribe to the doctrine of nonsuiting, to the extent of applying it in all cases, where a verdict may be set aside, as against evidence. I find cases occasionally at the circuit, so complicated or so evenly balanced, that I feel bound to submit them to a jury; and after they have found a verdict, I feel equally bound, on a re-examination of the case, to set.the verdict aside and submit it to a second jury. If the second jury find a similar verdict, I suffer it to stand. This I understand to be the correct practice. (Fowler v. The Ætna Fire Ins. Co. 7 Wend. 275. Graham, on New Trials.) But the case before us is not of that character. The facts here are plain, simple and undisputed ; and upon them the law is clear that the plaintiff cannot recover. The nonsuit was, therefore, properly ordered, and must be sustained.

Motion to set aside nonsuit denied.