James Morrison, Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

James Morrison, Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. (Argued December 8, 1875; decided December 21, 1875.) In an action to recover damages for injuries alleged to have been occasioned by defendant’s negligence, the absence of contributory negligence may be made to appear as well from the circumstances of the case as from evidence directly establishing the fact. In weighing those circumstances it may be assumed that all creatures are desirous of preserving their lives and keeping their bodies from harm. This was an action to recover damages for the alleged negligent killing of Martin Morrison, plaintiff’s intestate. The deceased, a boy about fourteen years of age, was driving a team and wagon on the highway at La Salle, Niagara county, across defendant’s tracks, when the wagon was struck by a passing work train and he was injured so that he died the same day. The principal question was as to contributory negligence on the part of the deceased. The court held (Earl, J., dissenting) that the facts and circumstances proved were sufficient to warrant the submission of that question to the jury. The propositions above stated appear in the opinion. A. P. Laning for the appellant. E. C. Sprague for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance; Rapallo, Andrews and Miller, JJ., concur; Earl, J., dissents; Church, Oh. J., and Allen, J., not voting. Judgment affirmed.