Bruck v. New York Central & Hudson River Railroad

Smith, P. J. (dissenting):

This was a negligence case submitted to the jury, and in which the jury found that there was no cause of action. In my judgment it might well be held that the plaintiff as matter of law was guilty of contributory negligence. He was going along right by the side of a tremendous engine, of the presence of which it was impossible for him to be unconscious, and by carelessly getting between that engine and the gate of the roundhouse he suffered injury. It seems to me idle to say that the engineer should have warned him, or should have blown a whistle, as the deceased was right there within a very few feet of the turntable, from which this engine must have steamed into this roundhouse. Moreover, his coemployee locked the turntable directly in front of the engine when it had made connection with the necessary track, and preceded the engine with his lantern into the roundhouse. But it is not necessary to hold that the deceased was guilty of contributory negligence as matter of law. The jury has found for the defendant under a charge which prohibited a recovery if either the defendant was found not to he guilty of negligence, or the deceased was found guilty of negligence contributing to the accident.

*625The prevailing opinion recommends that this judgment be reversed on the ground that the court committed error in allowing Mr. Joseph A. Brack, the sole next of kin of the deceased, to swear that he considered the sum of $250, the amount paid to him for a release in full, as in full satisfaction and payment of any pecuniary loss sustained by him as next of kin of Frank Brack, deceased. I am wholly unable to see why this was error. He had signed a full release of his right of action in consideration of $250. The legal presumption attaches that he considered the $250 as full compensation for the injuries for which he signed the release. But if the admission of the evidence were technical error, its effect was wholly compensated for by the charge of the trial court that a release signed by this next of kin would not release the cause of action for funeral expenses and other disbursements incident to the injuries. So that consistently with the charge of the court, the verdict of the jury of no cause of action must have proceeded upon a finding of fact either that there was no negligence on the part of the defendant, or that the plaintiff’s testator was guilty of contributory negligence. I, therefore, vote for affirmance.

Lyon, J., concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event, unless the defendant stipulates that judgment may be entered for the expenses and commissions, as per opinion; if such stipulation is made, the judgment is modified accordingly, and the judgment as so modified and the order affirmed, without costs.