Eckert v. Long Island R.R.

43 N.Y. 502 (1871)

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Nature of the Case

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Facts

P was standing in conversation with another person about fifty feet from Long Island's (D) track. D's train was coming in from Jamaica, at a rate of speed estimated from twelve to twenty miles per hour. P's witnesses heard no signal either from the whistle or the bell upon the engine. The engine was then running backward with the cow-catcher next the train it was drawing, and nothing in front to remove obstacles from the track. P claimed that the speed of the train was improper and negligent in that particular place, it being a thickly populated neighborhood, and one of the stations of the road. A child three or four years old was sitting or standing upon the track of the D's road as the train of cars was approaching, and was liable to be run over, if not removed. D threw the child clear of the track on the side opposite to that from which he came, but continuing across the track himself, was struck by the step or some part of the locomotive or tender, thrown down, and received injuries from which he died the same night. P's estate sued, claiming that D was negligent in going too fast in a neighborhood. D claims they were not negligent because they were going a moderate speed and that the child was not even on the track they were on. D also claimed that P's death was a result of his contributory negligence. The jury found for P. D appealed, and the appellate court affirmed. D appealed.