Patrick Roach, Respondent, v. The Flushing and North Side Railroad Company, Appellant

Patrick Roach, Respondent, v. The Flushing and North Side Railroad Company, Appellant. (Argued April 21, 1874; decided June 16, 1874.) This was an action to recover damages for injuries received by plaintiff while attempting to cross defendant’s track. Plaintiff was traveling in a wagon upon a highway in Queens county, and in attempting to cross the track of the defendant’s road, the wagon was struck by a train of cars, killing plaintiff’s horse, destroying his wagon, and injuring him. The only question discussed by the court was as to whether there was sufficient evidence of defendant’s nesrli- gence to authorize the submission of the question to the jury. Plaintiff testified that no bell was rung or whistle sounded upon. the engine, of the train before reaching the crossing ; that.he would have heard the sounds, if either had been done within eighty rods of the crossing. One other witness testified that he did not hear the whistle until after the train crossed the road. On the other side, the engineer, the conductor,. the baggage-master and three passengers testified positively that the whistle was sounded; and most of these witnesses agreed that both bell and whistle were sounding from the time the train came within eighty rods of the crossing until it passed. The evidence also was that the wind was blowing so as to ■ carry sound in a direction contrary to that in which the train "was going. Held (Johnson, Grover and Rapallo, JJ., dissenting), that the question was one of fact for the jury, and that the denial of a motion for a nonsuit was proper. E. E. Sprague for the appellant. James W. Covert for the respondent. [MAJORITY — Johnson, J.,] Johnson, J., reads for reversal and new trial; Grover and Rapallo, JJ., concur. For affirmance, Church, Ch. J., Folger, Allen and Andrews, JJ. Judgment affirmed.