
    BUMP v. NEW YORK, N. H. & H. R. CO.
    (Supreme Court, Appellate Division, Second Department.
    February 7, 1899.)
    1. Foreign Corporations—Torts Committed in Another State — Jurisdiction—Plaintiff’s Residence.
    Plaintiff sued defendant, a foreign corporation, for the wrongful killing of her husband in Connecticut, where she formerly lived. She testified that she moved to New York just prior to the commencement of the action, partly for the purpose of earning a better living, and partly to bring the suit; that she did not intend to return to Connecticut after the suit was completed, unless a better position was offered her; that she had formed no definite intention as to her future residence, but came “with the intention of staying here; living here.” Seld sufficient to show that she was a resident of New York, within Code Civ. Proc. § 1780, authorizing such suit to be maintained by a resident of the state.
    2. Railroads—Injury at Crossing—Duty to Check- Speed—Instructions.
    In an action for the wrongful killing of deceased at a crossing, the court charged that, if defendant’s engineer saw deceased in danger of being struck if the speed of his engine was not checked, it was his duty to use reasonable and proper efforts to stop the train. -Held, that the instruction merely imposed the duty on the engineer to use reasonable efforts to prevent a collision when he saw that decedent’s life was in danger, and was not therefore erroneous.
    Goodrich, P. J., and Woodward, J.-, dissenting.
    Appeal from trial term, Kings county.
    Action by Isabelle G. Bump, as administratrix of the estate of Allen Bump, deceased, against the New York, New Haven & Hartford Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
    Henry W. Taft, for appellant.
    John M. Gardner, for respondent.
   WILLARD BARTLETT, J.

This is an action to recover damages for the negligent killing of the plaintiff’s husband, in Connecticut The defendant is organized under the laws of that state, and asserts that it is a foreign corporation, which can be sued here only in the cases provided for in section 1780 of the Code of Civil Procedure. Whether it is a foreign corporation, within the meaning of that section, has been doubted (Phelps v. Railroad Co., 17 App. Div. 397, 45 N. Y. Supp. 178); but, assuming that it is, the plaintiff could not maintain the suit in this jurisdiction without being a resident of the state of Yew York. She formerly lived in Connecticut, and moved to this state in January, 1898, only a few days before the commencement of the action. At the time of the trial, she dwelt in the borough of Brooklyn, and worked for a corporation in the borough of Manhattan. She testified that she removed from Connecticut to Brooklyn, because she thought perhaps she might be able to earn a better living here, and also partly for the purpose of beginning this suit. As to her intention in respect to her residence, she said:

“I do not intend to go back to Connecticut when this suit is completed, unless I have a better position offered me. I think that I shall stay in Brooklyn after this suit is finished. I have not made up my mind quite about that. I have a very good position, and I think that I shall probably stay here. I haven’t formed a definite Intention in relation to my future residence. In January, I came here with the intention of staying here; living here.”

The testimony of the plaintiff herself was the only evidence on the subject of her residence. At the close of the case, one of the grounds stated for the defendant’s motion to dismiss was that it did not appear that the plaintiff was a resident of this state, within the meaning of the statute giving the court jurisdiction of actions against foreign corporations; and this point is the first which we are called upon to consider upon the present appeal. The simple physical change from Connecticut to Brooklyn, it is argued, was not enough. There must also, it is said, be an intention that the change shall be permanent; while here the plaintiff had not made up her mind definitely one way or the other as to her future abode. In the Phelps Case, supra, the question of the plaintiff’s residence was held to have been properly left to the jury, but there the plaintiff testified positively that he hail made up bis mind to come to Yew York to live permanently. It is true that the intent of the plaintiff here is not so clearly manifested; but, so far as she had formed any plan for the future, it would seem that she contemplated remaining in Brooklyn, rather than going anywhere else. To effect a change of residence, there must be an intent to abide in another place, accompanied by an actual going to that place, and abiding there. While, to constitute a person a resident of a state, he must intend to make and actually make that state his home, it is not necessary that he shall have determined to make it always his home. We think that the plaintiff’s testimony was sufficient to sustain a finding that she was a resident of the state of Yew York at the time of the commencement of the action, and consequently it would have been error for the court to dismiss the complaint on the ground of nonresidence. If counsel for the defendant had regarded the evidence on this subject as capable of supporting conflicting inferences, he should have asked to have the question submitted to the jury; but no such request appears to have been made, and the matter of the plaintiff’s residence is not mentioned in the judge’s charge.

The plaintiff’s intestate was killed by one of the defendant’s trains, while he was attempting to drive across the tracks of the Berkshire Division of the defendant’s railroad, in the town of Derby, Conn. The highway on which he approached the line descends quite abruptly towards the railroad, the grade being about 10 feet to the 100. The evidence in behalf of the plaintiff tended to show that the deceased exercised due precaution in approaching the track, the view of which was partly obstructed by an embankment and a fence. There was testimony to the effect that he stopped at a distance of 80 or 90 feet, and looked in the direction from which the train was coming, and that he stopped again when only 10 feet from the railroad. He then drove on, and was struck by the locomotive, and killed. The proof could be so viewed as to lead to the conclusion that no signal whatever was given of the approach of the train to the crossing until too late to serve as a warning, and that the train was running down grade, at a high rate of speed. The evidence in respect to negligence and contributory negligence was such as to require the submission of the case to the jury; and the verdict in favor of the plaintiff should stand, mnless the learned trial judge erred in charging the plaintiff’s first request. This alleged error is the only other point which it is necessary for us to discuss. That request was in these words:

■“If the engineer saw the deceased was in danger of being run into when he reached the crossing, provided the speed of his engine was not checked, it was his duty to do all reasonably within his power to prevent the disaster .by proper efforts to stop his train as soon as he could.”

If this meant, as is argued by counsel for the appellant, that the ■engineer was bound to do something to stop his train merely because he saw the deceased at a distance of 100 feet from the track, driving towards the crossing, apparently inattentive to the approach of the train, the proposition was incorrect. The engineer could properly assume that such a traveler would see the approaching train or heed the statutory signals of its approach, if they were given, and would not drive heedlessly on to destruction and death. But such is not the natural meaning of the instruction. It was only, if the engineer perceived that the conduct of the deceased rendered a collision likely to occur should the train keep on, that the jury were advised that it was incumbent upon the engineer to make a reasonable effort to stop; in other words, it was only when the engineer saw that the life of the plaintiff’s intestate was in danger. That this is the true construction of the language used by the court, and that it must have been so understood by the jury, is made manifest by a reference to the seventh and «eighth propositions, which were subsequently charged at the request of the defendant, in these words:

“(7) The engineer of the train was justified in assuming, if his locomotive was in sight, and the horse was under control, that an attempt would not he made to pass in front of the locomotive.
“(8) The engineer was also justified in assuming that, if the plaintiff’s intestate could have seen or heard the train in time to remain in a place of safety, he would have remained there.”

As qualified and explained by these additional statements, the previous instruction given at the plaintiff’s request was not erroneous, and could not have been misapprehended.

We think the judgment should be affirmed. All concur, except GOODRICH, P. J., and WOODWARD, J., dissenting.

WOODWARD, J. (dissenting).

The court had charged the jury fully as to its duties in the premises, and, at its close, counsel for the plaintiff asked that the jury be instructed that:

“If tlie engineer saw the deceased was in danger of being run into when he reached the crossing, provided the speed of his engine was not checked, it was his duty to do all reasonably within his power to prevent the disaster by proper efforts to stop his train as soon as he could.”

This was duly excepted to on behalf of the defendant, but the court so charged. It was in evidence that the engineer of the train saw plaintiff’s intestate when the engine was 500 feet from the crossing, and that the deceased was then approaching the track with the evident intention of crossing; and for the court to charge, as a matter of law, that the defendant’s engineer was bound to assume that plaintiff’s intestate would continue on his way, thus inviting: the disaster, is clearly erroneous. The engineer is not hound to stop his engine every time he sees a team approaching a grade crossing. He has a right to assume, the team being under control, that the driver will stop in time to avoid the danger; and it is only when the situation is such that the driver of the team, in the exercise of reasonable care, will not be able to protect himself, that the duty is imposed upon the defendant to bring its train to a standstill.

•‘An engineer is not bound to stop his train,” say the court in the case of Chrystal v. Railroad Co., 105 N. Y. 164, 170, 11 N. E. 382, “the moment he sees some living object on the track. He has the right, in broad daylight, when his train is perfectly visible, and its approach must he heard and known, at least in the first instance, to assume that the object, whatever it is, will leave the track in time to escape, injury. * * * Reasonable care in ilie management of trains which must make their time between stations, and have the right of way, does not require more. * * * All the engineer was hound to do after the discovery of the peril was to use reasonable diligence and care to avert it.”

In other words, the railroad having the paramount right at crossings, the engineer has the right to assume, in the absence of special circumstances, that persons approaching the crossing will stop in time to avoid collision; and he is charged with no higher duty than the exercise of reasonable care in the management of his train to avoid collisions at crossings; and the charge of the trial court, under the circumstances of this case, was error. Her is this error-cured by the further charge of the court, at the request of defendant’s counsel, that “the engineer of the train was justified in assuming. if his locomotive was in sight, and the horse was under control, that an attempt would not be made to pass in front of the locomolive”; and that “the engineer was also justified in assuming that, if the plaintiff’s intestate could have seen or heard the train in time to remain in a place of safety, he would have remained there.”' These additional propositions were made without withdrawing the one which had already been made to the jury with the approval of the court; and there were thus before them two statements of the law, diametrically opposed, and the jury was left to guess which, if either, of the rules of law, was correct, rather than to determine the question of negligence or lack of contributory negligence on the part of the parties to the action.

As was said by the court in the case of Phillips v. Railroad Co., 127 N. Y. 657, 27 N. E. 978:

“Erroneous instructions can be effectually cured only by their withdrawal in terms so explicit and unequivocal as to preclude the inference that the jury may have been influenced by them.”

In the case of Chapman v. Railroad Co., 55 N. Y. 579, the court charged the jury:

“But if, after a competent and proper person is employed for such a duty, if his habits become such that it is unsafe to trust him any longer in that capacity, the company are bound to use, through their proper officers, such reasonable care and diligence in ascertaining what the man is, after he is employed, as they would be in his original employment.”

On appeal, after pointing out the obvious error of this rule, the court say:

“It is not quite clear, from the whole charge, how far the learned judge intended to go in the direction indicated. During a colloquy between the judge and the counsel upon the point, the former used language tending partially to qualify the import of that quoted; but this portion of the charge was not withdrawn, and the jury might have acted upon it. To obviate an erroneous instruction upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it.”

It is clear, then, that the instruction given to the jury at the request of the plaintiffs counsel, being erroneous, was not cured by the subsequent charge of the court at the request of defendant’s counsel. Kelly v. Railroad Co., 25 App. Div. 603, 607, 50 N. Y. Supp. 426.

The judgment should be reversed, and a new trial granted; costs to abide the event.

GOODBIOH, P. J., concurs.  