HILL

ບ.

NINTH AVENUE STREET R. Co.

(109 N. Y., 239.)

Passenger-Street Car-Negligence-Province of Jury.-Testimony in an action to recover damages for injuries sustained by plaintiff while a passenger upon a street car, that the car was being driven with unusual speed, and was suddenly struck by the pole or shaft of truck which penetrated through the front panels of the car with sufficient forth to throw the plaintiff from his seat and inflict serious bodily injuries, is sufficient to raise a presumption that the car was driven negligently, and to raise a question for the determination of the jury.

APPEAL from General Term of the Court of Common Pleas for the City and County of New York.

Action by Adelia A. Hill against the Ninth Avenue Street Car R. Co. for damages for personal injuries received by plaintiff while a passenger upon a car belonging to defendant. The trial court dismissed the action at the close of plaintiff's evidence, on the ground that no negligence had been shown on the part of the defendant. The plaintiff appeals from a judgment of the general term confirming the dismissal. facts sufficiently appear in the opinion. Jerolman & Arrowsmith for appellant. John M. Scribner for respondent.

Facts.

The

FINCH, J.-We think that the plaintiff was improperly nonsuited. Her proof showed that while riding in a Ninth Avenue street car, in the city of New York, she observed that it was being driven with unusual speed, which she estimated to be about double the ordinary rate, and was suddenly struck by the pole or shaft of a truck which penetrated through the front panels of the car, and with sufficient remaining force to throw her from her seat, and inflict serious bodily injuries. Of course, she could see nothing, and know nothing of what was transpiring outside; but what occurred was enough to call for an explanation, and, in its absence, to warrant an inference that the driving of the car was in some manner negligent. The speed with which he was going, taken in connection with the circumstances of the accident, indicates that with proper care the injury might have been avoided, and, at all events, renders it impossible to say, as matter of law, that there was no evidence of negligence on the part of the car

Not proper to grant nonsuit.

driver. The collision may have been wholly due to the careless management of the truck, but it is not a reasonable and natural inference that a passenger in a street car can be thrown from her seat by the shaft of a truck piercing through the front of the car without some carelessness on the part of the driver; and when it is shown that he was driving at an unusual rate of speed, that becomes, inferentially, one cause or occasion of the accident, and calls for an explanation. The inference is not unnatural that if the driver had been going at an ordinary and prudent rate of speed the accident might have been avoided or mitigated, whatever the negligence of the truckman. Enough was proved to raise a question for the jury.

The judgment should be reversed, and a new trial granted,

costs to abide the event.

All concur.

Injuries to Street Car Passengers by Collisions with Other Vehicles.-In Potts v. Chicago City R. Co., 33 Fed. Rep. 610, the plaintiff, who was a passenger on one of defendant's cable trains, was injured by being struck by the shaft of a wagon projected into the car. His view of the sides of the streets, and knowledge of what was going on, was prevented by the curtains being down to keep out the rain. The court instructed the jury that "if necessity existed, on account of the rain, to drop the curtains, then the act of putting them down so that passengers should not be exposed to the storm was entirely proper, and, under such circumstances, negligence would not be imputable to the defendant on account of that act, even though it prevented the passengers from having a view of the sides of the streets." The jury were also instructed that defendant's liability depended upon whether the actions of the horse before the grip car passed him were such as should reasonably have excited apprehensions of a collision in the mind of the grip man. See also Federal St., etc., R. Co. v. Gibson, 11 Am. & Eng. R. R. Cas. 142; Tompkins v. Clay St. Hill R. Co., 18 Ib. 144; Wood v. Detroit City St. R. Co., 19 Ib. 129; Thirteenth, etc., St. Pass. R. Co. v. Baudron, 2 Ib. 30.

BREEN

ข.

NEW YORK CENTRAL AND HUDSON RIVER R. CO.

(109 N. Y., 297.)

Passengers Personal Injuries-Presumption of Negligence-Sufficiency of Evidence. Testimony that a passenger was sitting in a railroad car by a window, that his arm rested upon the sill, not extending outside the car window, and that his arm was struck by some substance from a passing freight train, is sufficient to raise a presumption of want of proper care on

the part of the company, and to cast upon the company the burden of disproving it, and in the absence of any explanation by the company a verdict for the plaintiff will be sustained.

APPEAL from the General Term of the Supreme Court for the Third Department.

Action by Matthew D. Breen against the New York Central & Hudson River R. Co., to recover damages for personal injuries received while travelling upon a train belonging to the defendant. The jury rendered a verdict for the plaintiff for $6000. The defendant appeals from a judgment of the general term affirming the judgment of the trial court. Hamilton Harris for appellant.

E. Countryman for respondent.

new trial.

DANFORTH, J.-The learned counsel for the appellant asks for a reversal of the judgment and a new trial, upon two grounds: First, that the injury to the plaintiff was Grounds for caused by his own negligence; and second, that the defendant, on the occasion in question, was free from negligence. The jury had both propositions before them, after instructions from the court, to which no objection is now made; and the general term was of opinion that the case was properly submitted to them. The judgment must stand, therefore, if there was evidence proper for the consideration of the jury, and sufficient in some reasonable view to induce the verdict. The plaintiff, a passenger on defendant's road. was entitled to be carried safely, so far as that could be effected by reasonable care on its part in the conduct of its business. The complaint is that while proceeding on his journey from Hudson northerly to Albany, he "was struck upon the left arm by a portion of a car door or other part of a freight train running on the defendant's road in an opposite direction," and seriously injured. He was at the time sitting by a window, his arm resting upon its sill. Whether it protruded beyond the sill and outside the car was a question upon the trial, and given to the jury, with directions to find a verdict for the defendant if that question was answered by them in the affirmative. Their verdict in favor of the plaintiff shows that in their opinion the plaintiff was wholly within the car. There is evidence to that effect. The plaintiff says, in one hand he had a paper, in the other a cigar. His arm rested on the windowsill. The window was raised, but "could have fallen down without touching my arm;" at that moment a freight train was passing by, "and something on the freight train struck my arm, and smashed it." The conductor came in and said he

Facts.

was on the next car, and he thought there was some accident when the lever to stop the train was pulled by the brakeman. One S., also a passenger, sitting near and behind the plaintiff, described his position, and said on cross-examination by defendant's counsel," I think if the window had come down it would not have hit his arm." Just the end of the arm rested on the sill." Another passenger, one W., giving a somewhat different account of the construction of the window casing, gives evidence in corroboration of the plaintiff's assertion that his arm was inside, and not outside, the car window. The freight train, as it passed Castleton, shortly before meeting the passenger train, was observed by one Simon, who testified that "there was a door swinging from a car, just as quick as a pigeon, up and down;" this was on the side of the freight car opposite the side of the car at which plaintiff sat. The evidence tended to prove that this swinging door caused the injury. The conductor of the passenger train formed the opinion at once that the cause of the injury was from the freight train, and directed the agent at Castleton to telegraph its conductor "that there was something on that train that struck my train," and he so telegraphed. It does not appear that the conductor of the freight train responded. He was not a witness on that trial; nor were any of the defendant's employees upon that train called to testify in regard to it; nor was there evidence to contradict the positive testimony of the plaintiff's witness as to the condition of the door and its dangerous operations. That it or some other hard substance from the freight car was doing harm is also established by evidence that the car in which the plaintiff sat was scratched and bruised upon the outside; that it was indented inside on the window casing by which he sat; and other cars in the train showed the result of the collision by glass broken from a window, and manifest abrasions and bruises upon the sides. The freight car was in bad condition from the failure of the defendant to keep it in repair, and it is but just that the defendant should be held accountable for a negligence which has been followed by such an accident. Measurement of the window sill, and opinions as to what could or might have been done upon such a surface, did not amount to demonstration, and were not conclusive. The jury were not bound so to construe that evidence as to discredit and reject that given by the plaintiff. It is for the public interest that persons should be enabled to travel safely over a road operated for pub. Verdict justi lic use, and without danger from accidents of this kind; but the defendant is not an insurer, and, as its learned counsel contends, the mere happening of an accident will not in all cases warrant a recovery by one receiving injury..

fled by evidence.

There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as in the ordinary course of business does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part. The case of Holbrook v. Railroad Co., 12 N. Y. 236, is to that effect. Its facts were quite like those now under consideration, and the principle there stated, that the presumption of want of proper care on the part of the company may arise from circumstances attending the injury, and so cast upon the defendant the burden of disproving it, applies here. No explanation was given by the defendant, and the conclusion reached by the jury was, upon both branches of the controversy, justified by the evidence. We agree with the general term as to the deductions fairly arising from the evidence, and think its judgment should be affirmed.

All concur, except PECKHAM, J., not sitting.

Injury to Passengers Riding with Arm Resting on Window Sill.-See Hallahan v. New York, etc., R. Co., 26 Am. & Eng. R. R. Cas. 169; Farlow v. Kelly, 11 Ib. 104; Germantown Pass. R. Co. v. Brophy, 16 Ib. 361; Dun v. Seaboard, etc., R. Co., 16 Ib. 363..

BLACK

ข.

BROOKLYN CITY R. Co.

(108 N. Y., 640.)

Passenger-Personal Injuries-Street Car-Erroneous Instruction.-In an action to recover damages for personal injuries in which it was alleged that the plaintiff while attempting to enter one of defendant's "down-cars," and actually being on one of the steps of its platform, was thrown from it upon the street, and in consequence of the negligence of defendant's servants, in both the “down-car" and a passing "up-car," was severely injured by collision with the "up-car," a judgment for the plaintiff will be reversed if the trial judge, while instructing the jury, correctly as to the negligence of defendant's servants upon the "down car," instructs the jury to take into consideration the conduct of the driver of the "up-car," and there is no testimony of any negligence upon his part, and it does not appear from the verdict upon which charge the jury passed their findings.

APPEAL from the General Term of the Supreme Court, Second Department.