THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. right the law gave it, it is chargeable with neglect or refusal to adjust or pay? The two sections are a part of the same amendatory act. Can it be said that, although the city, by its law department, might investigate for the period of three months, still, if the common council didn't act in forty days, it was chargeable with neglect? It is to be presumed that the Legislature designed that the provisions of both sections should be operative. They should, therefore, be construed so as to give effect to all the provisions. Manifestly, it was the design that the common council, if it so desired, should have the benefit of the judgment of the law department, and that in such case the law department had three months in which to act. Pending this investigation, and until the law department reported, the common council had a right to wait and should not be charged with negligence in so doing. The law clearly contemplated a full opportunity to investigate before a suit should be cominenced, and provided a method for such investigation. If, however, the common council absolutely refused to adjust or pay without a reference to the law department, or if the law department made its report before the expiration of the forty days and the common council did not act thereon, then, at the expiration of forty days, a suit would be in order. This construction would give effect to the provisions of both sections, and is in harmony with the view taken by the court in Jones v. City of Albany (62 Hun, 353, 356) in a case arising under the same statute before its amendment. In the present case the claim was immediately upon its presentment referred to the law committee, and no report had been made when the suit was commenced, which was done before the expiration of three months, and there was no evidence of any refusal to adjust or pay. I see no escape from the conclusion that the common council had a right to wait, and should not, because they waited, be charged with neglect or refusal, and that, therefore, the action was prematurely brought. The notice of intention to sue, which was served on the 2d of September, 1893, was apparently served under the provisions of chapter 572 of the Laws of 1886. That was a general act and would not override the special provisions in defendant's charter. App. Div.] THIRD DEPARTMENT, JULY TERM, 1896. Besides, the sections of the charter involved here were enacted in 1891. So I do not see how the plaintiff can get any benefit from his notice of intention to sue. The defendant also claims to sustain the nonsuit for the reason that the plaintiff's notice of claim did not properly state the cause of the injury. According to the notice, the plaintiff fell in consequence of his striking his foot against an obstruction upon the sidewalk. According to the evidence, he fell by reason of his foot breaking through one of the planks, which was rotten. The notice. stated a cause, but, as the defendant claims, did not state the cause within the meaning of the statute. This question, however, as well as the question whether by reason of the latent defect in the plank and the absence of proof of actual notice (Hunt v. Mayor, etc., of New York, 52 N. Y. Super. Ct. 198; Hart v. City of Brooklyn, 36 Barb. 226; Jorgensen v. Squires, 144 N. Y. 283; McCarthy v. City of Syracuse, 46 id. 194, 198; Rapho v. Moore, 68 Penn. St. 404, 408; Elliott on Roads and Streets, 645; Shearman & Redfield on Neg. [3d ed.] § 148; Botswick v. Barlow, 14 Hun, 177; Herringon v. Village of Phenix, 41 id. 270), the defendant is chargeable with negligence as to the condition of the walk, need not, in view of the conclusion on the first proposition, be here considered. All concurred. Judgment and order affirmed, with costs. JOHN F. HICKEY, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant. Negligence-declarations of persons approaching a railroad crossing in a buggy — proof of the occupation of the plaintiff, as affecting the measure of damages. In an action brought to recover damages, resulting from injuries caused by the alleged negligence of the defendant, to the plaintiff, who, with a companion, was being driven in a buggy at the time of the accident over a railroad crossing on a dark and foggy night, it is proper to admit evidence of what was said by any of the persons in the buggy calling the attention of the driver to an approaching train, and as to anything said at that time by these persons as to whether or not they could hear or see any approaching train. It is competent in such a case, upon the question of damages, for the plaintiff to describe his occupation prior to the accident, and his ability to earn money. THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. APPEAL by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 28th day of September, 1895, upon the verdict of a jury rendered after a trial at the Rensselaer Circuit, and also from an order bearing date the 26th day of September, 1895, and entered in said clerk's office, denying the defendant's motion for a new trial made upon the minutes. R. A. Parmenter, for the appellant. Lewis E. Griffith, for the respondent. MERWIN, J.: On the 19th of August, 1891, the plaintiff was injured in a collision with a passenger train of defendant at a highway crossing in the village of Herkimer. The collision and consequent injury were due, as the plaintiff claims, to the negligence of defendant in running its train, without any contributory negligence on the part of plaintiff, and the jury have so found. The ground of negligence is the failure to give due warning of the approach of the train. The plaintiff was a resident of Troy and was attending a firemen's convention at the village of Herkimer. He and another delegate by the name of Mulligan stopped at a hotel in the village of Mohawk, about a mile distant. The proceedings in the evening of August eighteenth continued to a late hour, and it was about one o'clock in the morning of the nineteenth before the plaintiff and his associate started for their hotel. It was very dark and there was a dense fog, and they arranged with one Crossett to take them in a carriage to Mohawk. He sent Lawton, one of his employees, with a one-horse top buggy, the top being down. The three sat upon one seat, Lawton being in the middle and driving. Lawton was familiar with that locality. They proceeded southerly down Main street, which crosses the railroad tracks at the station at about right angles. When they arrived near the railroad a freight train was passing eastwardly on track No. 4. After it passed they proceeded along, but, as the plaintiff testifies, they stopped before passing over any of the tracks, and all looked and listened to ascertain whether any other train was coming, and hearing or seeing nothing they App. Div.] started across, and were struck by a west-bound passenger train on track No. 2, which is the second track beyond, or southerly of the one the freight train was on. The plaintiff was severely injured and the other two were killed. The defendant claims that upon the facts the judgment should be reversed; that upon the evidence the jury was not warranted in finding that the defendant was negligent or the plaintiff free from negligence. There was evidence on the part of plaintiff tending to show that the train was going very fast; that the fog was so dense that the headlight furnished practically no warning; that the whistle, if blown, was blown so far away that it was not heard at the crossing; that no bell was rung, or, if rung, could not be heard at the crossing. It was the duty of the defendant to use reasonable care in the operation of its train, having in view the circumstances of the case and the danger to be reasonably apprehended. It was bound to give reasonable warning of its approach to the crossing. (Dyer v. Erie Railway Co., 71 N. Y. 228; Weber v. N. Y. C. & H. R. R. R. Co., 58 id. 451; Vandewater v. N. Y. & N. E. R. R. Co., 135 id. 583, 588; Crawford v. D., L. & W. R. R. Co., 13 N. Y. St. Repr. 298.) Whether or not the defendant performed its duty was, I think, a question for the jury, and its conclusion should not be disturbed. Whether or not the plaintiff was free from negligence depended largely upon the credit to be given to the testimony of the plaintiff himself. The jury had a right to believe him, and, if so, had the right to say that he was not careless. (Wilcox v. N. Y., L. E. & W. R. R. Co., 88 Hun, 263.) The verdict should not, I think, be disturbed upon the facts. Our attention is called to several exceptions to rulings upon evidence. Error is claimed in the refusal of the court to strike out certain evidence given by Crossett, a witness for the plaintiff, on his redirect examination as to the ability of the driver Lawton. The evidence was proper as explanative of or in reply to the crossexamination. The witness Hall was allowed to give his opinion of the speed of the, train. Presumptively, as the evidence then stood, he was THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. competent to give it, though not an expert. (Salter v. Utica & B. R. R. R. Co., 59 N. Y. 632.) A witness testified that the train was coming "at a very rapid rate of speed." This the defendant moved to strike out on the ground that the witness was not shown competent to speak. The refusal to strike out did not affect defendant's rights, as it afterwards appeared that the witness was competent. The defendant objected to the evidence of plaintiff as to what was said between the three in the buggy just before they started to cross the track. The court limited the evidence "to whatever may have been said by any one of the three to the others, calling the attention of the driver to an approaching train," "to anything they may have said at that time as to whether or not they could hear or see any approaching train." This was competent on the question of contributory negligence. Upon the question of damages, it was competent for the plaintiff to describe his occupation prior to the accident and his ability to earn money. The defendant offered as evidence its rule No. 95, but it is not apparent how it was material. The rule itself is not in the record. Of the charge the defendant has no good ground to complain. The refusal to charge requests, the subject of which has been fully and sufficiently charged upon already, does not present error. No point is made as to the amount of the damages. No good ground for reversal is, I think, apparent in the case, and the judgment should, therefore, be affirmed. All concurred. Judgment and order affirmed, with costs. |