#### DE LOGE v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Railroad Companies—Accidents at Grossings—Excessive Speed.

Whether a railroad company was negligent in running its train oyer a street crossing in a city at the rate of 25 miles an hour is a question of fact.

2. Same—Imputed Negligence.

In an action against a railroad company for injuries at a crossing, where plaintiff, who, when the accident happened, was in a wagon driven by another person, testified that he heard no warning till the engine struck the wagon, and it did not appear that plaintiff was guilty of affirmative negligence or co-operated with any affirmative negligent act of the driver, the question of whether plaintiff was negligent in trusting to the driver’s diligence was one of fact.

3. Same—Instructions.

In an action against a railroad company for injuries at a crossing while plaintiff was in a wagon driven by K., a charge that “the negligence of IC., to which plaintiff consented, or in which he participated, would defeat the plaintiff’s right of action,” was properly refused, as assuming that K. was guilty of negligence to or in which plaintiff consented or participated, the court having charged that plaintiff could not negligently permit himself to be in the custody of K., and depend on K.’s diligence, but was required to be diligent himself.

4. Municipal Corporations—Ordinances—Proof of Adoption.

Under Laws 1869, c. 714, tit. 3, subd. 33, § 8 (Watertown City Charter), providing rliat ordinances shall be published in such manner as the common council shall direct, compliance with the direction of the council that an ordinance be published in two papers is sufficiently shown by an affidavit of publication by the publisher of one paper, to which was attached a printed copy of the ordinance, with an affidavit of the publisher of the other paper annexed to the printed copy “that a notice of which the annexed is a printed copy has been published in said newspaper,” as the latter affidavit should be read with the printed copy of the ordinance.-

Appeal from circuit court, Jefferson county.

Action by Hormisdas De Loge against the ¡New York Central & Hudson River Railroad Company for personal injuries. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Affirmed.

Plaintiff was riding with one Keech in a carriage, and approached the crossing, and received injuries which caused the loss of both feet and ankles of the plaintiff. An amputation thereof became necessary between the ankles and knees. Rutland street passes nearly north and south, and the railroad tracks nearly east and west. The train was due at Watertown at about 9 o’clock, and was 10 minutes late. As Keech and plaintiff approached the crossing from the north, they passed a church where there was some festivity taking place; and the evidence is somewhat conflicting as to whether the night was light or dark, and there was some evidence that the bells or whistles were not given before the train reached the crossing; and the plaintiff testified that he heard no warning until he leaped from the buggy. The engine struck the carriage about the forward wheels, and Keech was killed, and the plaintiff jumped from the vehicle, and received the injuries mentioned. Plaintiff was riding in the carriage upon the invitation of Keech, a man about 60 years of age, a farmer, who lived near Watertown, and for whom the plaintiff worked; and there is evidence that the plaintiff knew nothing of the existence of the railroad. The evidence tended to show that the train approached the crossing at a speed of over 25 miles an hour. The defendant’s engineer testified, viz.: “I won’t swear that we were not running *698faster than fifteen miles an hour when I crossed Rutland street.” And the fireman said: “I would not want to swear we were not running faster than twenty miles an hour.” And the defendant’s conductor testified: “We were going faster than fifteen miles an hour over Hamilton street. We were going between twenty and twenty-five, I should judge. We were not going more than probably eighteen or twenty miles over Central street. * * * I will swear we were not going twenty-five. Won’t swear we were not going twenty; might be twenty to twenty-two. I think it is about 300 feet from Central street to Rutland street. 1 will swear we were not crossing Rutland street crossing at a greater speed than fifteen miles per hour. I know very near the speed we were crossing that street that night; of course, I could not tell within a second probably. We were going faster than we ought, of course. I knew it, and didn’t try to stop it.” Plaintiff gave evidence tending to show that the city had adopted an ordinance- forbidding the running of trains within the city limits faster than five miles an hour under a penalty.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Mullin, Griffin & Walker, for appellant.

Smith & Smith, for respondent.

HARDIN, P. J.

Upon all the evidence found in the appeal book,, we are of the opinion that the trial judge properly submitted the question as to whether the defendant was guilty of negligence in operating its trains in the manner disclosed by the witnesses at the time the injuries were received, as a question of fact, to the jury.

In Massoth v. Canal Co., 64 N. Y. 524, it was said:

> “Irrespective of any ordinance or law regulating the speed of railroad trains, it was a question of fact whether the rate was excessive or dangerous in that locality; and, if so found by the jury, and such excessive rate-of speed caused the collision, the defendant was liable for the consequences.”

A somewhat similar doctrine was restated in Cordell v. Railroad Co. 70 N. Y. 124.

In Thompson v. Railroad Co., 110 N. Y. 637, 17 N. E. 690, it was-said:

> “The giving of the signals required by law does not, under all circumstances, render the defendant free from negligence if it ran its trains in an undue, and what might be found to be an improper and highly dangerous, rate of speed throughout a village or city more or less densely populated.”

Towns v. Railroad Co. (Sup.) 8 N. Y. Supp. 137.

2. Upon the evidence given by the plaintiff himself as a witness, and upon the circumstances disclosed in connection therewith by the other evidence in the case, we are of the opinion that the question of whether he was guilty of contributory negligence on the occasion of receiving the injuries was one proper for the jury to determine. Plaintiff had been invited by Keech to ride, and apparently was in possession of his faculties. He was a man some 32 years of age, and in the company of Keech, who was about 60 years of age; and, upon the circumstances disclosed by the evidence of the plaintiff, it was a question for the jury to determine whether Keech was guilty of any negligence in approaching the crossing. The evidence does not indicate that the plaintiff himself affirmatively was guilty of any negligence, or in co-operating with any affirmative negligent act of Keech. Upon all the evidence disclosed, it was for the jury to determine whether the plaintiff was himself free from contributory *699negligence at the time the injuries were received. Masterson v. Railroad Co., 84 N. Y. 247; Miller v. Railroad Co., 82 Hun, 164, 31 N. Y. Supp. 317, affirmed 33 N. Y. Supp. 1130; Chisholm v. State, 141 N. Y. 246, 36 N. E. 184; McGoldrick v. Railroad Co., 142 N. Y. 640, 37 N. E. 567; Bennett v. Railroad Co. (Sup.) 16 N. Y. Supp. 765, affirmed 133 N. Y. 563, 30 N. E. 1149.

In the last case it was said:

> “The plaintiff being a passenger merely, and having no right to direct or control Mulligan, while not excused from exercising care herself, Mulligan’s negligence cannot be imputed to her. Robinson v. Railroad Co., 66 N. Y. *11;*Masterson v. Railroad Co., 84 N. Y. 247; Dyer v Railway Co., 71 N. Y. 228; Platz v. City of Cohoes, 24 Hun, 101; Hoag v. Railroad Co., 111 N. Y. 199-203, 18 N. E. 648.”

Upon the evidence given at the trial, we are of the opinion that the jury was warranted in finding the plaintiff free from negligence contributing to the injuries received.

The foregoing views lead to the conclusion that there was no error committed by the trial judge in refusing a motion for a nonsuit, “upon the ground that, upon the undisputed evidence, the defendant is not chargeable with any negligence which contributed to the accident; and, upon the undisputed proof, it does not appear that the plaintiff himself was in the exercise of any care to prevent the accident, or, in other words, that he is chargeable with contributory negligence.” We think the motion based upon the grounds mentioned was properly denied, and that the exception thereto presents no error of which the appellant can avail.

Appellant calls our attention to Bates v. Railroad Co., 84 Hun, 287, 32 N. Y. Supp. 337. In looking into the facts disclosed in that case, we find they differ widely from the facts presented by the testimony in the case at bar, and therefore they do not sustain the contention of the appellant in this case.

3. We think no error was committed in refusing the request made to the court that it should charge that:

> “The negligence of Keech, to which the plaintiff consented, or in which he participated, would defeat the plaintiff’s right of action.”

The request was too broad. It assumed that Keech was guilty of negligence. Second, it assumed that the plaintiff consented to such negligence, or participated therein. In the body of the charge the court had observed:

> “The fact that Keech may have been negligent does not impose liability for negligence on the part of plaintiff. If Keech was negligent, that negligence is not to be imputed to the plaintiff. On the contrary, the plaintiff could not rely upon the guardianship of Keech; he could not negligently permit himself to be in the custody of Keech, and depend upon ICeech’s diligence and prudence; but he must necessarily have depended upon his own judgment, and he was required to give care and diligence himself, notwithstanding Keech may have been negligent.”

We think the charge as delivered was as fair upon the subject-matter embraced in the request as the defendant was entitled to receive at the hands of the court.

4. We think there was sufficient evidence to indicate that the city of Watertown had adopted an ordinance forbidding the running of *700trains at a greater rate oí speed than five miles an hour through its city. In the thirty-third subdivision of section 8 of its charter, defining the powers of the common council, authority is given to the council from time to time to make, ordain, and establish such bylaws and ordinances as may be necessary and proper. See subdivision 33, § 8, tit. 3, c. 714, Laws 1869. The charter expressly authorizes the common council to regulate-the speed of railroad cars. See subdivision 26, § 8, of the charter. Subdivision 33, § 8, of the charter provides that such by-laws and ordinances as shall be adopted by the common council “shall be published in such manner as the common council may direct before they take effect.” It seems the common council adopted an ordinance in 1890, providing •that it should take effect on the 16th day of October, 1890, which, upon inspection, turned out to be an amendment of a previous ordinance upon the same subject, with the same purport, however, as to the rate of speed at which trains should be operated within the city. At the time of the adoption of the ordinance of 1890, a direction was given that the ordinance should be published in the Watertown Daily Times and Watertown Reunion before the date of its taking effect. Chapter 810 of the Laws of 1871 provides that the chamberlain shall act as clerk of the common council. There was a certificate produced by the chamberlain, and affidavits of publication of the same. Upon the argument before us, the original exhibit No. 9, as marked at the trial by the reporter, was produced, which purports to be an affidavit made by Clare, publisher of the Watertown Reunion, to which affidavit is annexed a printed copy of the ordinance, and attached to that affidavit and annexed to the printed copy of the ordinance is the affidavit of Cole, publisher of the Watertown Daily Times, in which affidavit it is said “that a notice of which the annexed is a printed copy has been published in said newspaper.” We think the affidavit must be read in connection with the ordinance of which a printed copy appears attached to the affidavit, and that the objections to the introduction of the ordinance were properly overruled, and that the exceptions thereto do not present error. Code, §§ 926, 941.

No other exceptions are pressed upon our attention by the brief of the learned counsel for the appellant, nor were any others discussed in the course of his oral argument. Several others seem to have been taken during the trial, but have not been regarded as of sufficient consequence to challenge an argument in respect thereto from the appellant’s learned counsel. Plaintiff received very serious injuries, and no objection is made by the appellant’s counsel to the amount of damages awarded therefor. The foregoing views lead us to sustain the verdict.

Judgment and order affirmed, with costs. All concur.