Keech v. Rome, Ogdensburg & Watertown Railroad , 35 N.Y. St. Rep. 902 ( 1891 )

Landon, J.

The learned trial judge in effect instructed the jury that there was no evidence tending to show any negligence of defendant’s servants with respect to the engine, regard being had to its use, if considered independently of the representation to plaintiff that it was safe for him to go over the crossing; but that this representation to plaintiff, made by defendant’s servants in charge of the engine, and upon which the plaintiff relied in proceeding to cross, imposed upon such servants the duty to refrain from so operating the engine as to make the crossing less safe than their representation led him to think it was. The learned judge said: “It was their duty, so far as they had control, to so manage the engine that it should not ¡unnecessarily jeopardize the plaintiff, and that, if they blew the whistle just as he came opposite them, and it was unnecessary to do so under the circumstances,”—the jury might find that the defendant was liable. This instruction proceeds upon the theory that the defendant was not to be made liable because it made the noises and performed the operations incident to its business, but because, having given the plaintiff, who had waited some time to obtain it, an assurance of safety, it was its duty, if it was in its power, to refrain for the moment from unnecessarily doing any act to imperil his safety. This instruction appears to be reasonable, and is within the doctrine of Borst v. Railroad Co., 4 Hun, 346; affirmed 66 N. Y. 639. The defendant contends that the defendant’s servants did no improper act, and' omitted no proper one. If the operations of the engine were under their control they could have suppressed the “pop-whistle” and the “tooting” of the whistle. If the pop-whistle was not under control, but worked automatically, and was liable to go off whenever the engine stood still, these facts were known to the engineer. The plaintiff was not shown to know them. The question would then be whether it was negligence to stop the engine in advance of the plaintiff, instead of in his rear, and tell him to go ahead, without regard to the liability of the pop-whistle to go off. The assurance of safety was made without reservation, and implied, we think, the control of the engineer over his engine and its instruments of alarming sounds. We think the case was proper for the jury, and that the defendant has no ground to complain of the manner of its submission. The defendant’s counsel contends that the fair meaning of the words, “All right; go ahead,” was that the crossing was clear. We do not think the court could hold that that was its only meaning, or that the jury ought, under the circumstances, to have held so. There was slight cause to charge the plaintiff with contributory negligence, and the verdict cannot be disturbed upon that ground. The charge with respect to damages was carefully, and, we think, accurately, made. Judgment affirmed, with costs. All concur.