Bump v. New York, New Haven & Hartford Railroad , 38 A.D. 60 ( 1899 )

Willard Bartlett, J. :

This is an action to recover damages for the negligent killing of the plaintiff’s husband, in Connecticut. The defendant is organized under the laws of that State and asserts that it is a foreign corporation which can be sued here only in the cases provided for in section 1780 of the Code of Civil Procedure. Whether it is a foreign corporation within the meaning of that section has been doubted. (Phelps v. N. Y., N. H. & H. R. R. Co., 17 App. Div. 392.) But, assuming that it is, the plaintiff could not maintain the suit in this jurisdiction without being a resident of the State of New York. She formerly lived in Connecticut and moved to this State in January, 1898, only a few days before the commencement of the action. At the' time of the trial she dwelt in the borough of Brooklyn, and. worked for a corporation in the borough of Manhattan. She testified that she removed from Connecticut to Brooklyn because she thought perhaps she might be able to earn a better living here and also partly for the purpose of beginning this suit. As to her intention in respect to her residence, she said: “I do not intend to go back to Connecticut when this suit is completed unless I have a better position offered me. I think that I shall stay in Brooklyn after this suit is finished. I have not made up my mind quite about that. I have a very good position, and I think that I shall probably stay here. I haven’t formed a definite intention in relation to my future residence. In January I came here with the intention of staying here; living here.”

The testimony of the plaintiff herself was the only evidence on the subject of her residence. At the close of the case one of the grounds stated for the defendant’s motion to dismiss was that it did not appear that the plaintiff was a resident of this State within the meaning of the statute giving the court jurisdiction of actions against foreign corporations, and this point is the first which we are called upon to consider upon the present appeal. The simple physical change from Connecticut to Brooklyn, it is argued, was not enough. There must also, it is said, be an intention that the change shall be permanent; while here the plaintiff had not made up her mind definitely one way or the other as to her' future abode.'

In the Phelps Case (supra) the question of the plaintiff’s residence was held to have been properly left to the jury, but there the plaintiff testified positively that he had made up his mind to come to New York to live permanently. It is true that the intent of the plaintiff here is not so clearly manifested, but, so far as she had formed any plan for the future, it would seem that she contemplated remaining in Brooklyn rather than going anywhere else. To effect a change of residence there must be an intent to abide in another place, accompanied by an actual going to that place and abiding there. While to constitute a person a resident of a State he must intend to make, and actually make, that State his home, it is not necessary that he shall have determined to make it always his home. We think that the plaintiff’s testimony was sufficient to sustain a finding that she was a resident of the State of New York at the time of the commencement of the action, and .consequently it would have been error for the court to dismiss the complaint on the ground of non-residence. If counsel for the defendant had regarded the evidence on; this subject as capable of supporting confiictmg'inierences, he should have asked to have the question submitted to the jury, but no such request appears to have been made, and the matter of the plaintiff’s, residence is not mentioned in the judge’s charge.

The plaintiff’s intestate was killed by one of the defendant’s trains while he was attempting to drive across the tracks of the Berkshire division of the defendant’s railroad in the town of Derby, Connecticut. The highway on which he approached the line descends quite abruptly toward the railroad, the grade being about ten feet to the hundred. The evidence in behalf of the plaintiff tended to showthat the deceased, exercised due precaution in approaching the track, the view of wdiich was partly obstructed by an embankment and a fence. There was testimony to the effect that he stopped at a dis- ■ tance of eighty or ninety feet and looked in the direction from which the train was coming, and that he stopped again when only ten feet from the railroad. He then drove on and was struck by the locomotive and killed. The proof could be so viewed as to lead to the conclusion that no signal whatever was given of the . approach of the train to the crossing until too late to serve as a warning, and that the train was running down grade at a high rate of speed. The evidence in respect to negligence and contributory negligence was such as to require the submission of the case to the jury, and the verdict in favor of the plaintiff should stand unless the-learned trial judge erred in charging the plaintiff’s first request.' This alleged error is the only other point which it is necessary for us to discuss.

That request was in these words: “ If the engineer saw the deceased was in danger of being run into when he reached the crossing, provided the speed of his engine was not checked; it was his; duty to do all reasonably within his power to prevent the disaster by proper efforts to stop his train as soon as he could.”

If this meant, as is .argued by counsel for the appellant, that the engineer was bound to do something to stop his train merely because he saw the deceased at a distance of 100 feet from the track driving-toward the crossing apparently inattentive to the approach of the train, the proposition was incorrect. The engineer could properly ■assume that such a traveler would see the approaching train or heed the statutory signals of its approach, if they were given, and would, not drive heedlessly on to destruction and death. But such is not the natural meaning of the instruction. , It was only if the engineer perceived that the conduct .of the deceased rendered a collision likely to occur should the train keep on, that the jury were advised that it was incumbent upon the engineer to make a reasonable effort to stop. In other words, it was only when the engineer saw that the life of the plaintiff’s intestate was in danger. That this is the true ■construction of the language used by the court, and that it must have been so understood by the jury, is made manifest by a reference to the 7th and 8th propositions which were subsequently charged, at the request of the defendant, in these words: ■

.“7. The engineer of the train was justified in assuming, if his locomotive was in sight and the horse was under, control, that an attempt would not be made to pass in front of the locomotive.

“ 8. The engineer was also justified in assuming that, if the plaintiff’s intestate could have seen or heard the train in time to remain in a place of safety, he would have remained there.”

As qualified and éxplained by these additional statements, the previous instruction given at the plaintiff’s request was not erroneous :and could not have been.misapprehended.

We think the judgment should be affirmed.'

All concurred, except Woodwabd, J., who read for reversal, with whom Goodbioh, P. J., concurred.