Palmer et al. v. N.Y.C. H.R.R.R. Co.

32 Citing cases

  1. Balto. Ohio R. Co. v. Stumpf

    97 Md. 78 (Md. 1903)   Cited 22 times
    In Balto. O.R.R. Co. v. Stumpf, 97 Md. 78, the language of the fourth prayer of the plaintiff, which was granted by the trial court and approved by this court, was likewise the same as that used in the third prayer in this case.

    In Beach on Contributory Negligence, sec. 190, it is said: "An open gate is a notice of a clear track and that it is safe to cross without taking the precautions usually required to discover approaching trains, and negligence is not imputed to one who acts upon that assurance." See also R.R. v. Ives, 144 U.S. 418; R.R. v. Prescott, 59 Fed. Rep. 239; Palmer v. R.R., 112 N.Y. 234; Kleiber v. R.R., 14 L.R.A. 618; Feeney v. R.R., 116 N.Y. 375; R.R. v. Killips, 88 Pa. St. 405, 411; Chicago, Rock Isl. and Pac. v. Clough, 134 Ill. 586; Wilson v. Ry. Co., 29 Atl. R. 258; Mo. Pac. R. Co. v. Hackett, 54 Kan. 316; Evans v. Lake Shore, c., Co., 88 Mich. 442; Rohde v. Chicago, c., Co., 86 Wis. 312; St. Louis R. Co. v. Dunn, 78 Ill. 197; Kissinger v. R. Co., 56 N.Y. 538; Glushing v. Sharp, 96 N.Y. 676; Maine v. Boston, c., R. Co., 80 Me. 430; Dolan v. R. Co., 71 N.Y. 285; Whelan v. R.R., 38 Fed. Rep. 15; R.R. v. Stagmeier, 118 Ind. 305; R.R. v. Schnider, 45 Ohio St. 678; R.R. v. Hutchinson, 120 Ill. 587; Stapley et al. v. London, etc., R.R., L.R. 1 Exc. 21; Railroad v. Wanless, L.R. 7 H.L. 12. Defendant's first prayer is almost unintelligible and was misleading.

  2. Lemieux v. Leonard Const. Co.

    73 R.I. 338 (R.I. 1947)   Cited 6 times
    In Lemieux v. Leonard Const. Co., R.I. 1947, 56 A.2d 189, a motor vehicle occupant brought suit against a railroad for injuries sustained in a collision at a crossing resulting from the alleged negligence of the crossing tender in failing to give adequate warning of an approaching train.

    Such a motion was denied in Kissenger v. New York Harlem R.R., 56 N.Y. 538, where, as in the case at bar, the flagman was talking to another person and not attending to his duties. And in Palmer v. New York Central Hudson River R.R., 112 N.Y. 234, it was said that open gates were an assurance that neither train nor engine was rendering the way dangerous, and that the silence of the bell and whistle was an indication to the plaintiff that no train or locomotive was within 80 rods of the crossing. The court held that, although the plaintiff was still bound to use ordinary care for his own safety, the measure of that care varied with the circumstances, and negligence could not be presumed but was a question for the jury.

  3. Walsh v. Butte, Anaconda Etc. Ry. Co.

    97 P.2d 325 (Mont. 1939)   Cited 12 times

    Here it is conceded that the train had not proceeded over the highway crossing until about the same moment the automobile reached the crossing. Hence a driver looking straight ahead would not have seen it until in close proximity to it. Under such circumstances and when it is remembered that the open gates — and the jury was warranted in finding that they were open — constituted an invitation to proceed and an assurance that the track could be crossed in safety, the degree of vigilance required of Stevens was greatly cut down. ( Palmer v. New York Cent. H.R.R. Co., 112 N.Y. 234, 19 N.E. 678; Elliott on Railroads, 2d ed., par. 1157; Pennsylvania Co. v. Stegemeier, 118 Ind. 305, 20 N.E. 843, 10 Am. St. Rep. 136.) We cannot say that Stevens was guilty of contributory negligence, as a matter of law.

  4. Southern Ry. Co. v. Campbell

    172 Va. 311 (Va. 1939)   Cited 12 times
    Noting that driving in front of a train "is not conclusive evidence" of the driver's negligence because, for example, he may have been "misled" by the defendant's negligence

    And while courts and text-writers differ as to the degree of reliance that may be placed upon the invitation which an open gate or silent gong gives to the traveller to cross, they generally, if not universally, hold that the same degree of care and caution is not required of him, as if there was no such invitation. 3 Elliott on Railroads, sec. 1157; 2 Wood on Railways, (Ed. 1885), p. 1328; (Id. Ed. 1894), p. 1532; Directors, c., North East Railway v. Wanless, 7 Eng. Irish Appeal Cases (House of Lords), 12; Palmer v. New York Central, etc., R. Co., 112 N.Y. 234, 241, 19 N.E. 678; Tobias v. Michigan Cent. R. Co. ( 103 Mich. 330), 61 N.W. 514; Glushing v. Sharp, 96 N.Y. 676; Cleveland, etc., R. Co. v. Schneider ( 45 Ohio St. 678), 17 N.E. 321; Pennsylvania Co. v. Stegmeier ( 118 Ind. 305), 20 N.E. 843 (10 Am.St. Rep. 136); Conaty v. New York, etc., R. Co. ( 164 Mass. 572), 42 N.E. 103; Beach on Contributory Negligence (2d Ed.), sec. 190. "The question of negligence in such a case is peculiarly one for the consideration of the jury."

  5. Incret v. Chicago, M., St. P. P.R. Co.

    107 Mont. 394 (Mont. 1938)   Cited 16 times

    ( Baltimore etc. R. Co. v. Landrigan, 191 U.S. 461, 24 Sup. Ct. 137, 141, 48 L.Ed. 262.) As was said in Palmer v. New York Cent. etc. R. Co., 112 N.Y. 234, 19 N.E. 678, 680: "The duty of the company was imperative, and it is obvious that an open gate was a direct and explicit assurance to the traveler that neither train nor engine was rendering the way dangerous, — that none was passing. A closed gate was an obstruction preventing access to the road; an open gate was equally positive in the implication to be derived from it that the way was safe.

  6. Kennedy v. N.Y., N.H. H.R.R. Co.

    43 R.I. 358 (R.I. 1921)   Cited 7 times

    Most of the cases cited by the plaintiff are not opposed to the general rule that when the view is unobstructed a person must look or be held guilty of negligence as a matter of law, e.g. In Palmer v. N.Y.C. H.R.R., 112 N.Y. 234, cited by the plaintiff, the crossing gates were open and the view was obstructed. In Wallenburg v. Mo. Pacif. R.R. 86 Neb. 642, cited by the plaintiff, the view was somewhat obscured.

  7. St. Louis S. F. R. Co. v. Hart

    45 Okla. 659 (Okla. 1914)   Cited 44 times
    In St. L. S. F. Ry. Co. v. Hart, 45 Okla. 659, 146 P. 436, it was held, pursuant to this provision, that in no event is the court authorized to direct a verdict or sustain a demurrer to the evidence upon the ground that it conclusively appears that the plaintiff is guilty of contributory negligence as a matter of law.

    It is frequently stated that the fact that a safety gate at a railway crossing is open is an implied invitation to cross and an assurance of safety from any passing train. Blount v. Grand Trunk R. Co., 9 C. C. A. 526, 61 Fed. 375, 22 U.S. App. 129; Central Trust Co. v. Wabash, St. L. P. R. Co. (C. C.) 27 Fed. 159; Indianapolis Union R. Co. v. Neubaucher, 16 Ind. App. 21, 43 N.E. 576, 44 N.E. 669; Glushing v. Sharp, 96 N.Y. 676; Palmer v. N.Y. C. H. R. Co., 112 N.Y. 234, 19 N.E. 678; Scaggs v. Delaware H. Canal Co., 154 N.Y. 201, 39 N.E. 716. Moreover, in this jurisdiction, "the defense of contributory negligence * * * shall in all cases whatsoever be a question of fact and shall at all times be left to the jury."

  8. Cranch v. Brooklyn Heights R.R. Co.

    78 N.E. 1078 (N.Y. 1906)   Cited 4 times

    Thus, although this was a matter of seconds, the plaintiff still had an appreciable period of time in which to look for the train, after she had arrived at the place where she attempted to cross and before that point had been reached by the train. These are the facts which differentiate this case from Palmer v. N.Y.C. H.R.R.R. Co. ( 112 N.Y. 234); Beecher v. Long Island R.R. Co. (161 id. 222), and the other cases relied upon by the plaintiff. In all of those cases there were circumstances from which it was reasonable to draw the inference, either that such care had been exercised as was required in the circumstances, or that the necessity for such care had been obviated by conditions well calculated to lull a reasonably prudent person into a sense of security.

  9. Northern C. Ry. Co. v. Gilmore

    60 A. 19 (Md. 1905)   Cited 13 times

    This is the view held in the following cases in this country. Grand Trunk Railway Co. v. Ives, 144 U.S. 408; Dolan v. Del. and Hudson Canal Co., 71 N.Y. 288; Glushing v. Sharp, 96 N.Y. 667; Palmer v. N.Y. Cent. R.R., 112 N.Y. 234; Chicago and Rock Island R.R. Co. v. Clough, 134 Ill. 586; Rhode v. Chicago and North Western R.R., 86 Wis. 312; Evans v. Lake Shore and Mich. Sou. R.R., 88 Mich. 442; Wilson v. N.Y. and N.H.R.R., 29 Atl. Rep. 258, and in many other cases which might be cited. In Glushing v. Sharp, supra, the Court said: "The open gate was a substantial assurance of safety, just as significant as if the gateman had beckoned or invited him to come on, and that an ordinarily prudent man would not be influenced by it, is against all human experience."

  10. Fejdowski v. D. H. Canal Co.

    61 N.E. 888 (N.Y. 1901)   Cited 7 times

    While the general rule requires a traveler upon a public highway, who is about to cross at grade the track of a railroad, to both look and listen in order to learn whether a train is approaching, it is applied only "when it appears from the evidence that he might have seen, had he looked, or might have heard, had he listened." ( Smedis v. Brooklyn Rockaway B.R.R. Co., 88 N.Y. 14, 20; Thompson v. N.Y.C. H.R.R.R. Co., 110 id. 637; Palmer v. N.Y.C. H.R.R.R. Co., 112 id. 234, 243; Pruey v. N.Y.C. H.R.R.R. Co., 41 App. Div. 160; 166 N.Y. 616.) He is not required to look or listen when neither would do any good, and such, as the jury might have found, was the situation when the decedent met his death.