App. Div.] Third Department, March, 1910. shall not, by reason only of such minority, be deemed incompetent to contract for such insurance or for the surrender of such insurance, or to give a valid discharge for any benefit accruing, or for money payable under the contract." The plaintiff's contention is that at common law the infant had the right to make the contract, which was not void but only voidable at his election, and that this statute is simply a declaration of the common-law rule. It is difficult, however, to see for what purpose the statute was passed if that be its interpretation. No insurance company would insure an infant with the right of the infant at any time to cancel the policy and to recover back the premiums paid. There are many reasons why it may be well for the infant, and those dependent upon the infant, that it should be possible to effect insurance upon his life. It may reasonably be supposed that the Legislature had in mind the desirability of an infant's having the power to make a valid contract, one that should be binding upon him as to the obligations imposed in order to secure to him the benefits which it could give. A further question is raised that this policy is not merely a policy of insurance but is what is called an endowment policy, or one under the terms of which a certain sum was to be repaid to the assured at a period of twenty years, and that the policy was in the nature of an investment as well as in the nature of an insurance policy. But these different forms of policies were commonly known at the time of the passage of this act, and were presumably within the knowledge of the Legislature. The right to make investments in connection with insurance is a more important right to a boy than it is to an older man. With the presumed knowledge of the different forms of insurance commonly in use, the failure of the Legislature to specify what insurance might lawfully be taken by an infant would seem to indicate that the infant was permitted under the statute to take any of those forms that are commonly used and make a valid contract in reference thereto. We are of opinion, therefore, that the county judge was right and that the judgment must be affirmed, with costs. All concurred. Judgment affirmed, with costs. Third Department, March, 1910. [Vol. 137. JOHN CUNNINGHAM, as Administrator, etc., of TIMOTHY CUNNINGHAM, Deceased, Respondent, v. THE ERIE RAILROAD COMPANY, Appellant. Third Department, March 9, 1910. Railroad-negligence - collision at crossing - gates - trial — charge. -- Where plaintiff's intestate when intoxicated was struck by a railroad train while crossing the track about midnight in a buggy driven by an intoxicated driver, and it appears that the crossing was guarded by gates from seven A. M. to nine P. M., but not afterwards, and that the intestate had worked in the vicinity for several years, a charge which permits a recovery if the jury find that ordinary prudence required the operation of the gates at the hour of the accident, without regard to their findings on other questions, is error. The defendant was entitled to a charge that, upon the evidence, the plaintiff's intestate had no right to rely upon the fact that the gates were up as an invi tation to cross, and also to charge that, if the intestate knew or would have known had he been sober that the driver was in such a state as to be incapable of giving attention to driving which a prudent man would have given, the plaintiff cannot recover. APPEAL by the defendant, The Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 26th day of March, 1909, upon the verdict of a jury for $850, and also from an order entered in said clerk's office on the 15th day of July, 1909, denying the defendant's motion for a new trial made upon the minutes. Reynolds, Stanchfield & Collin [Halsey Sayles of counsel], for the appellant. Benjamin C. Mead, for the respondent. KELLOGG, J.: This is a crossing case. The charge of the court permitted a recovery upon either of three grounds: (1) Failure to give proper signal or warning; (2) running the engine at a dangerous and unreas. onable rate of speed; (3) failure to properly guard the crossing by use of the gates. For some fifteen years gates had been used at the crossing from seven o'clock in the morning until nine at night, and it does not App. Div.] Third Department, March, 1910. appear that they had been used at any other times. The deceased had worked in the vicinity more or less for several years and was familiar with the location, passing the crossing frequently before and after nine o'clock at night. The accident took place about midnight while the intestate and his companion Coleman were riding in a single buggy with one Gaige. Gaige was intoxicated at the time of the accident, and upon the evidence is fairly charged with contributory negligence. All had been drinking quite heavily, Coleman at least was noisy, and the intestate had fallen down in coming from the hotel to the wagon. As they approached near the crossing quantities of broken stone were upon the road, which was undergoing reconstruction at the time, and their wagon made a great noise in passing over the stone at a gait from ten to twelve miles an hour. Apparently none of them gave any particular attention or thought to the crossing and perhaps were not able so to do. We cannot assume that the intestate knew that gates were used at this crossing and was ignorant of the fact that they were not used after nine o'clock at night. He clearly had as much knowledge upon one subject as the other, and was evidently informed on both. Undoubtedly the jury had the right to take into consideration all the circumstances at the crossing in determining whether the defendant was properly managing its engine, and one circumstance was that gates were not in use at the time. If the intestate knew of the gates and found them up during the hours when they would naturally be in use if a train was approaching, that fact might bear upon the question of his contributory negligence. But the charge permits a recovery solely because there were no gates at a time when the jury thought it would be prudent to have them without regard to the finding of the jury upon the other questions. (Houghkirk v. President, etc., D. & H. C. Co., 92 N. Y. 219, and cases cited.) It was error to charge that if ordinary prudence required the operation of the gates at this hour the jury might consider that by not operating them the defendant was inviting travelers to go upon the track by reason of their being opened, unless the intestate had either actual or implied notice that the gates were not used after nine o'clock. This part of the charge permitted a recovery if the intestate was entirely ignorant as to whether gates had ever been maintained there or not. The recov Third Department, March, 1910. [Vol. 137. ery was probably based upon a misconception of the real question. The defendant was entitled to the charge that upon the evidence the plaintiff's intestate had no right to rely at all upon the fact that the gates were up as an invitation to cross. The evidence indicates that the conduct of the driver rather than the negligence of the defendant caused the injury, and the court should have charged the defendant's request that if the intestate knew, or would have known if he had been sober, that Gaige was in such a state as to be incapable of giving the attention to what he was doing which a man of prudence and reasonable intelligence would have given, the plaintiff cannot recover. The evidence does not establish the defendant's negligence or the intestate's freedom from contributory negligence. The recovery is not sustained by the evidence. The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event. HARVEY HARRISON, Respondent, v. JOHN MCCLELLAN and WILLIAM MCCLELLAN, Appellants, Impleaded with JOHN HAINES, Defendant. Animals trespass Third Department, March 9, 1910. lease of farm and stock on shares liability of landlord. The liability for the trespass of animals is imposed not because of ownership, but because of possession and the duty to care for them. Where lands stocked by the owner are rented, the tenant and not the landlord is liable for trespasses committed by the cattle which the landlord has furnished for the tenant's use. Where the owners rented a farm on shares under a lease providing that they were to stock it with twenty-one cows and a bull, which they were not to remove unless they put others in their places, and the tenant agreed to furnish eight cows of his own and to keep the fences in repair, and the exclusive control of the stock and farm was left to the tenant, the landlords are not liable for damage done by the cows which escaped from a pasture and injured the crops of a neighbor. App. Div.] Third Department, March, 1910. If any liability of the landlords were established, it should only be for the amount of damage committed by their own cattle and not for that done by the tenant's COWS. APPEAL by the defendants, John McClellan and another, from a judgment of the County Court of Otsego county in favor of the plaintiff, entered in the office of the clerk of said county on the 22d day of September, 1909, upon an order of said County Court entered on the 10th day of September, 1909, affirming the judgment of a Justice's Court, the appeal having been taken from said court upon questions of law only, and also (as stated in the notice of appeal) from said order of affirmance. Cattle from the farm owned by the defendants McClellan trespassed upon the plaintiff's farm and injured his corn, to his damage of twenty-seven dollars, for which, with costs, he recovered judgment against them and Haines, their tenant. Haines was carrying on the farm under a written agreement which "Witnesseth: That the parties of the first part lease their farm on shares, share and share alike, for the period of one year, commencing upon Mar. 1, 1908, and terminating upon Mar. 1, 1909." Haines was not to sublet any part of the farm; appellants reserved the right to sell and remove timber from any portion of the woodland "while this lease is in effect." They were to "stock said farm with 21 cows and bull, reserving the right to dispose of any of them after Nov. 1, 1908, and replace with the same number." Haines accepted the cows then upon the farm and was not to dispose of any of them; he was also to put on eight cows of his own; he is required to plow and top-dress certain lands; to raise five acres of buckwheat, each to furnish half the seeds and phosphate, and when threshed the buckwheat is to be divided equally. The milk, except two quarts a day to be used by Haines, to be delivered each morning at the factory, and the dividends from the factory are to be paid half to each party. Each pays one-half the taxes, and for one-half the salt and paris green; five acres of potatoes are to be planted, Haines to give them good care, and they are to be divided when dug; they are to determine what land shall be plowed; seven acres of ensilage corn is to be planted; Haines is to furnish his team; the hay and straw on the place is to be fed to the stock, and the balance, if any, is to remain on the farm; he is to keep not to exceed twenty-nine |
