and judgment entered on the verdict of a jury in favor of the plaintiff, defendant appeals. Reversed, and new trial granted.


cussion of this question with a brief quotation from the opinion in that case. In classifying the cases which are exempt from the rule that a complete written contract cannot be modified or contradicted by parol evidence, Judge Vann says: "The second class embraces those cases which recognize the written instrument as existing and valid, but regard it as incomplete either obviously, or at least possibly, and admit parol evidence, not to contradictor vary, but to complete the entire agreement of which the writing was only a part.

* Two things, however, are essential to bring a case within this class: (1) The writing must not appear upon inspection to be a complete contract, embracing all the particulars necessary to make a perfect agreement and designed to express the whole arrangement between the parties, for in such a case it is conclusively presumed to embrace the entire contract. (2) The parol contract must be consistent with and not contradictory of the written instrument." This extract we regard as a compendium of the law applicable to this case, and it follows that the defendant should have been allowed to make proof, if he could, of the express oral warranty alleged in his answer.

The judgment herein should be reversed, and a new trial granted, with costs to abide the event.

CULLEN, C. J., and EDWARD T. BARTLETT, WILLARD BARTLETT, and HISCOCK, JJ., concur; GRAY, J., absent; CHASE, J., not sitting.

This action was brought to recover damages for injuries sustained by the plaintiff in a collision with one of defendant's trains at what is known as the "Eighty-Fourth Street Station" of that branch of its railroad which runs southerly from the city of Brooklyn to Ulmer Park. The Eighty-Fourth Street Station is in the Bath Beach section of the city of Brooklyn. The accident happened shortly before 11 o'clock on the morning of November 22, 1901. The plaintiff, a married woman, was on that date about 41 years of age, and, with her husband, had resided within a few blocks of the station mentioned for a number of years, so that she was familiar with the locality, and with the times of the running of trains on defendant's road. At Eighty-Fourth street the railroad consists of double tracks running generally north and south. The trains are propelled from an overhead trolley system. At that point the right of way is a private one derived from a steam railroad which had formerly been operated there. On each side of the tracks to the south of Eighty-Fourth street, which crosses the tracks from east to west, are concrete platforms 120 feet in length that serve as stations for persons intending to take passage on defendant's trains. The northbound trains run to Brooklyn and pass in front of the easterly platform, while the south-bound trains going to Ulmer Park pass in front of the westerly platform. At about 20 minutes to 11 on the morning of the accident the plaintiff, in company with her husband, left her home intending to take a train to Brooklyn which was scheduled to leave Eighty-Fourth street at 10:53. They approached the tracks from the west by a diagonal foot path across a vacant lot. When they had crossed this vacant lot, and had reached Eighteenth avenue, which is adjacent to the defendant's right of way on the west, they saw a train approaching from the south and then about 700 or 800 feet distant. They supposed that it was the 10:53 train to Brooklyn which they intended to take. Continuing towards the tracks and expecting to cross them to the opposite platform ahead of the approaching train their progress was interrupted by a train from Brooklyn which came in on the south-bound track in front of them, crossed Eighty-Fourth street and stopped at the platform on the westerly side. The rear end of the last car of this south-bound train stopped at about the northerly end of the platform on the westerly side, which is about 6 feet south of the Eighty-Fourth street crossing. As they crossed behind the rear car. of this train and emerged from behind it into the space between the two tracks, the plaintiff looked to the south and saw the oncoming north-bound train at the southerly end of the concrete platform about 120 feet

Judgment reversed, etc.


A pedestrian, intending to take passage on a train at a station, was struck by a train, which did not stop there. No warning was given that the train would not stop. Trains customarily stopped at the station which fact was known to the pedestrian. The pedestrian first saw the train about 700 or 800 feet from the station. She next saw it about 120 feet from her and instead of attempting to cross there, she walked a distance of 35 or 40 feet to a place at or near the center of a street and without looking for the approaching train she stepped on the track, and was injured. While walking the distance of 35 or 40 feet she was in a place of safety and could, at every instant, have commanded a full view of the approaching train. Held, that she was guilty of contributory negligence as a matter of law.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, $s 1080-1083.]

Vann and Willard Bartlett, JJ., dissenting.

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away. Her husband crossed safely at this known to the plaintiff, who had been a reyipoint and reached the northerly end of the dent in that vicinity for many years, and had platform on the opposite side, which is nearer been a frequent passenger on the defendant's to Eighty-Fourth street than the one on the railroad. If these facts, in and of themselves, westerly side. The plaintiff did not attempt justified the plaintiff's attempt to cross the to follow her husband across at this point. tracks at the time and in the manner above Having seen the train approaching at the indicated, it would logically follow that the other end of the platform, and evidently sup verdict of the jury was proper, and that its posing that it would stop by the time the affirmance by the Appellate Division was first car reached the northerly end of the necessary. It seems to us, however, that the platform, she turned and walked towards the plaintiff's evidence upon this feature of the north about 35 feet, taking the same direction case not only failed to establish her freedom as the approaching train. This took her well from contributory negligence, but demon

into the center of Eighty-Fourth
street. She strated its existence

as matter of law. The

then attempted to cross without again looking evidence which tended to show that all of at the approaching train. Just as she placed the defendant's north-bound trains stopped at one foot on the track she was struck by the the Eighty-Fourth Street Station was clearly motor car of the north-bound train, which competent and cogent upon that question, had not slackened its speed, and sustained and, standing alone, might have been sufficient the injuries complained of. The plaintiff and to sustain the conclusion that the plaintiff her husband acted upon the assumption that was free from contributory negligence. But this train was the one due to leave for there is something more. The plaintiff testified Brooklyn at 10:53, and that it would stop as that from the time when she and her husband usual in front of the Eighty-Fourth street reached Eighteenth avenue and first saw the platform in such a position that the first car north-bound train at a distance of 700 or 800 would not pass beyond the northerly end of feet south of the station, she did not see it the platform. It transpired, however, that it again until she looked around the rear end was not a regular train, and was not scheduled of the south-bound train which had stopped to stop at that station. The place at which at the station. At that moment she saw the the plaintiff attempted to cross was shown, north-bound train coming into the southerly by the plaintiff's evidence, to be considerably end of the station at a distance of at least 120 to the north of the usual stopping place of feet south of the point from which she took trains at this station. The plaintiff's evidence

her observation. Instead of attempting to tended to show, and the jury were justified cross then and there, as she might possibly in finding, that all trains, except those running have done in safety, she concluded to walk to at night after 9 or 10 o'clock and in the early the north for a distance of 35 or 40 feet, to a morning, came to a stop at this station, and place at or near the center of Eighty-Fourth that the front end of the first car of such street. What was her purpose in doing this? stopping trains did not usually project more

She was doubtless acting upon the assumption than a few feet beyond the end of the that the train would stop at the station, and, platform towards the Eighty-Fourth street therefore, concluded to go far enough to the crossing The evidence also justified the north to be entirely clear of the motor car of jury in finding that in approaching this the train which, in stopping, might run slightstation those in charge of the train that ly past the limits of the station and into the caused the accident blew no whistle, rang no

boundaries of Eighty-Fourth street. Having bell, or gave any warning of its approach, and taken this precaution, while she was in a that the speed of the train, which was about place of absolute safety from which she could 12 miles an hour, was not slackened. In at every instant have commanded a full view short, that nothing was done to indicate that of the approaching train, it is obvious that this was not the regular train scheduled to she should not have attempted to cross the stop at the Eighty-Fourth Street Station at track without first looking to see whether the that time.

train had in fact stopped. It is a familiar

physical fact within the knowledge of all I. R. Oeland, for appellant. Stephen C.

persons of ordinary intelligence that railroad Baldwin, for respondent.

trains, operated either by steam or electricity,

cannot always be stopped with mathematical WERNER, J. (after stating the facts). precision at a given point. This fact is clearFor the purposes of this discussion we will ly demonstrated by the evidence which tends assume that the jury had the right to charge to show that the north-bound trains, in stopthe defendant with negligence, for there was ping at the Eighty-Fourth Street Station, evidence tending to show that those in charge would sometimes be brought to a standstill of the train with which the plaintiff collided before the motor car reached Eighty-Fourth gave no signal or warning of its approach to street, and on other occasions would run a the crossing at which the accident happened. little further to the north so as to project into We must also assume that the evidence war Eighty-Fourth street. ranted the finding that all of the north-bound The inevitable inference to be drawn from trains of the defendant stopped at the Eighty the plaintiff's own testimony is that it was Fourth Street Station, and that this fact was this uncertainty as to the precise point of

stoppage of the train that was in her mind when she concluded to make the "detour" of 35 or 40 feet to the north. In doing so she turned her back to the oncoming train and never looked again to see where it was, or whether it had stopped or not, although a simple turn of her head would have sufficed to gain for her this all-important information. Without a look, she put her foot upon the north-bound track. Before she could move forward, she was struck by the train which was then moving at the rate of 12 miles an hour. Without any attempt to exercise her senses of sight or hearing she stepped from the zone of absolute safety into a place of probable danger, and this at the very time when the exercise of her faculties was imperative, if her previous precautions were to be of any practical benefit. If such conduct does not properly support the legal inference of contributory negligence, then there can be no case in which the speculative finding of a jury upon that question may not be substituted for legal rules of evidence. It may be admitted, for the argument, that the custom of stopping all north-bound trains at this station and the failure of the defendant to give any signal or warning of its intention not to stop this particular train, might have lulled the plaintiff into a feeling of security such as described in the case of Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 355, 363, 21 N. E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 450. The obvious answer to that suggestion is that the plaintiff's own conduct, considered in the light of the surrounding circumstances, was utterly inconsistent with that theory. When the plaintiff and her husband reached the northerly end of the stationary south-bound train the

, according to the undisputed testimony, barely escaped collision with the oncoming train, Had the plaintiff attempted to follow even a moment later, an accident would have been inevitable. It was this emergency that must have suggested to the plaintiff the propriety of going to the north to a point beyond which the then moving train would be sure not to extend if it were going to stop at that station. Having done so much, how could the plaintiff be said to have exercised reasonable care and caution without even taking another look before stepping from her position of safety literally against the motor car which was then directly in front of her.

We do not deem it necessary to go into an extended discussion of the decided cases for, in the last analysis, the question of contributory negligence depends upon the application of well-settled legal rules to the special facts of each given case. As a gen. eral rule the question whether a person colliding with a railroad train has been guilty of contributory negligence is one of fact for a jury (Parsons v. N. Y. C. & H. R. R. R. Co., supra), and, as applied to the specific facts of this case, that rule is to be consider

ed in the light of another rule to the effect that a person who intends to take passage upon a railroad train and crosses the railroad tracks at a highway crossing commonly used for that purpose, is not held to the same strict exercise of care and caution that is required of the ordinary wayfarer along the highway. Terry V. Jewett, 78 N. Y. 338; Brassell v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 241. Both of these rules might be successfully invoked in support of plaintiff's contention that her alleged contributory neg. ligence presented a question of fact for the jury, if it were not for the conclusive character of the evidence showing that plaintiff, although fully cognizant of the threatened danger, disregarded the most simple and obvious precautions for her safety that common prudence and ordinary intelligence could sug. gest. Having gone out of her way to avoid the train, she neglected to look for it at a time when every instinct of self-preservation and every dictate of common prudence demanded such action. Instead of attempting to cross at the usual place, relying upon the customary stoppage of the train, she had witnessed the dangerous, albeit successful, experiment of her husband, and concluded to defer her crossing to another time and place. Assuming that the plaintiff walked at the rate of four miles an hour, it would have taken her between 5 and 6 seconds to make her "detour" of 35 feet, while it would have taken the train, running at the rate of 12 miles an hour, between 8 and 9 seconds to reach the place where she attempted to cross; that point being 155 feet north of the southerly entrance to the station. 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, 19 N. E. 678; Beecher v. Long Island R. R. Co., 161 N. Y. 222, 55 N. E. 899, 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. In the case at bar the plaintiff's own testimony affirmatively establishes, not only her failure to exercise necessary care. but her evident understanding and appreciation of the conditions which attended her attempt to cross the tracks.

The judgment should be reversed and a new trial granted, with costs to abide the event.

VANN, J. (dissenting). I dissent. The plaintiff, instead of running the risk her hus.

band ran, took greater care than he, and Appeal from Supreme Court, Appellate relying, as she had the right to, on the ab Division, Fourth Department. sence of signals and the uniform custom of Action by the American Guild of Richmond the defendant, met with injury owing to its Virginia against Phebe D. Damon and annegligence. The strict rule governing travel other. From an order of the Appellate Diers at a highway crossing does not apply to vision (94 N. J. Supp. 935) reversing a judgone who is compelled to cross tracks in order ment of the Special Term in favor of deto reach a railway station, which, when a fendants, they appeal. Reversed. train is due, is a constant invitation to come

Louis J. Bedell, William Kennedy, and and take it. It was the duty of the defend

Nelson L. Lansing, for appellants. Wallace ant to so arrange its trains that a person

Thayer, for respondent. intending to take passage could get on one without being injured by another. The plaintiff had the right to assume, in the ab

CULLEN, C. J. The action is brought by sence of any warning, that the north-bound

the plaintiff, a Virginia corporation, as the train would stop where such trains always

assignee of the Safety Fund Insurance had stopped. She may have erred in judg

Society, a New York corporation, to fore

close a mortgage executed by the two apment in believing that the defendant would do its duty and warn her if a train passed

pellants, husband and wife, to said lastby without stopping, but since she took care

named corporation to secure the payment to walk far around instead of following her

of a joint and several bond executed and

delivered to the same party at the same husband straight across, she should not be turned out of court on the ground that she

time. The defendants pleaded as a defense took no care whatever. While she did not

and set-off a claim held by the defendant take all the care possible, since she took

Joseph Damon against the plaintiff's assignsome, it was for the jury to say whether she or on two participation certificates issued took enough, and we should not hold that by, that corporation, the nature of which

certificates is not material to this discussion. she was negligent as matter of law. Strict rules are required to protect passengers and

On the trial it appeared that the plaintiff's those about to enter a station intending to

assignor and its assignee had entered into become passengers, and every decision which

what is called “a consolidation agreement," tends to undermine their safety is a misfor

by which the plaintiff was to acquire all the tune to the traveling public. I vote to affirm.

assets of its assignor and to administer those

assets in discharge of its assignor's obligaCULLEN, C. J., and HAIGHT and HIS tion, but the debts of the assignor were in COCK, JJ., concur with WERNER, J. WIL no degree to be assumed by the plaintiff. LARD BARTLETT, J. concurs with VANN, The Special Term found the maturity of the J. GRAY, J., absent.

participation certificates before the assign

ment of the mortgage in suit to the plainJudgment reversed, etc.

tiff and the liability thereon of the plain

tiff's assignor to the defendant Joseph. It (186 N. Y. 360)

made a decree in favor of the defendants AMERICAN GUILD OF RICHMOND, VA., canceling the bond and mortgage and award. V. DAMON et al.

ing them judgment against the plaintiff or (Court of Appeals of New York. Nov. 13, the excess of the amount due on the certifi1906.)

cates over that due on the bond and mort1. PLEADING-SET-OFF AND COUNTERCLAIM gage. The Appellate Division reversed this ANSWER-REPLY.

judgment, and ordered a trial. The In an action by the assignee of a mortgage

unanimous order entered upon this decision to foreclose such mortgage where a claim held by defendant against plaintiff's assignor exceed reversed the judgment on questions of law ing the amount due on the obligation secured only, and affirmatively declared in the body by the mortgage is pleaded as a "defense and

of the order that the facts had been examinset-off," and such set-off and defense are sustained, plaintiff is not liable for the excess of

ed and no error found therein. From the the sum due on defendant's claim over that due order of the Appellate Division the defendon the mortgage obligation, though he failed to ants have appealed to this court, giving the serve a reply to defendant's answer, as such answer did not distinctly plead defendant's claim

requisite stipulation. as a "counterclaim."

Under the form of the order of the Ap[Ed. Note.--For cases in point, see Cent. Dig. pellate Division the facts found by the trial vol. 39, Pleading, $ 329.]

court are conclusive on this court. The 2. SET-OFF AND COUNTERCLAIM-JOINT AND only question before us is whether those SEVERAL CLAIMS.

facts justified or required a reversal of the In an action against a husband and wife to foreclose a mortgage executed by them to secure

judgment rendered thereon by the Special their joint and several bond, a claim by the Term. That the plaintiff, under its agreehusband alone against the mortgagee was a ment with its assignor, was not liable pergood set-off and extinguished the liability on the

sonally for the debts of the latter corporamortgage and the obligation secured by it, though the action was in form joint.

tion is entirely clear. Therefore, the Ap[Ed. Note. For cases in point, see Cent. Dig. pellate Division was doubtless correct in vol. 43, Set-Off and Counterclaim, § 87.]

reversing so much of the judgment as award

ed a recovery against the plaintiff for the held by himself.

held by himself. In Briggs V. Briggs, 20 excess of the sum due on the certificates Barb. 477, it was held that, in an action over that due on the bond and mortgage, against several defendants jointly and severunless, as the appellants' counsel contends, ally liable, either of them might set off indithe plaintiff was foreclosed by its failure vidual debts due to him by the plaintiff or to serve a reply to the defendants' answer. might avail himself thereof by way of counThis position of counsel cannot be upheld. terclaim. See, also, Newell v. Salmons, 22 In the answer the certificates are pleaded Barb. 647. The authority of these earlier deas a set-off and defense, and in the prayer cisions has never been impugned, and Newell for judgment, where the only mention of v. Salmons is cited with approval in Bathgate counterclaim is found, it is asked that they v. Haskin, 59 N. Y. 533. In the present case, be allowed as a counterclaim, defense, and as already said, the bond of the defendants is set-off, and that the bond and mortgage joint and several, and, therefore, a several be canceled. No recovery against the plain- judgment could have been had against either tiff for the amount of the certificate is asked. defendant. The fact that the action was It is the settled law in this state that for a in form joint does not affect the principle defendant to preclude a plaintiff from con

involved. When the defendants “in an actesting a counterclaim because of a failure tion are jointly and severally liable, although to

a reply, the counterclaim must sued jointly, a counterclaim, consisting of be distinctly named as such in the answer.

a demand in favor of one or some of them, Acer v. Hotchkiss, 97 N. Y. 395; Equitable may, if otherwise without objection, be inLife Assurance Society v. Cuyler, 75 N. Y. terposed.” Pomeroy's Remedies and Reme511. But though the judgment was prop dial Rights, § 761; Dunn v. West, 5 B. Mon. erly reversed in this respect, it not being (Ky.) 376, 381. Therefore, had the defendpossible on another trial to vary the proof

ants been sued on the bond in an action at as to the liability of the plaintiff, a new law the defendant Joseph could, under the trial should not have been ordered, but the authorities and the rule obtaining in this judgment merely modified, unless as a mat state, have interposed as a counterclaim the ter of law the certificates were not a valid amount due him on the participation certifiset-off to the bond and mortgage. Freel v. cates. In such case it is plain that the County of Queens, 154 N. Y. 661, 49 N. E. 124; counterclaim so interposed would necessarily Heerwagen v. Crosstown Street Ry. Co., 179 have inured to the benefit of all the defendN. Y. 99, 79 N. E. 729.

ants. The plaintiff had but one claim, and This brings us to the principal question but one cause of action. Payment by a in the case, which is whether the claim on stranger to the obligation would not disthe certificates which was held by only one charge it, but payment by anybody liable of the defendants was a good set-off against thereon, whether jointly or severally, would the plaintiff's claim. Under sections 502 and necessarily satisfy it. Cockcroft v. Muller, 1909 of the Code of Civil Procedure the as 71 N. Y. 367. Any other rule would permit signment to the plaintiff was subject not a creditor to recover his claim as many times only to every defense, but to every counter over as he had parties severally liable for claim there might have been set up against the debt. We are not considering a case its assignor. Therefore, the question pre where the creditor has released one of his sented here is the same as that which would debtors, either without consideration or for arise had the action been brought by the less than the debt, reserving his right to original mortgagee, and may be examined proceed against the others. Such settlements and considered from that point of view. are authorized by our statutes. But where At common law and under the Revised Stat a debt has been paid in full by one debtor, utes in an action against more than one it is satisfied as to all. Coonley v. Wood, 36 defendant there could be interposed only a Ilun, 559. The same rule must obtain in set-off due to all the defendants jointly. the case of a counterclaim as in that of pay2 Rev. St. (1st Ed.) p. 354, pt. 3, c. 6, tit. 2, ment. It is in fact a payment by the set-off § 18. That rule still obtains in this state, of an outstanding claim against the creditor. where the suit is on the joint obligation or Had the bond not been assigned, and the liability of the defendants. Where, however, plaintiff's assignor brought an action upon the liability of the defendants is several, it, the defendant Joseph interposing his under the express provisions of section 501 counterclaim, the judgment in the action of the present Code, which in this respect would extinguish pro tanto the claim of that is but a re-enactment of section 150 of the defendant against the plaintiff. If it were former Code, as amended in 1832, a defend allowed to recover against the other defendant against whom a several judgment may ant, it would be recovering twice over-first, be rendered can interpose a counterclaim ex by the extinguishment of its debt, and, second, isting in his own favor. In Parsons v. Nash by the amount recovered against the other 8 How. Prac. 454, which was an action defendant. Whenever in a suit on a money against the maker and sureties on a promis obligation a counterclaim is allowed in favor sory note, it was held that, as a several judg of one of several defendants it must, from ment might be rendered against either de the nature of the case, necessarily inure to fendant, either could plead a counterclaim the benefit of all the defendants liable on

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