Craft v. Peekskill Lighting & Railroad

Appellate Division of the Supreme Court of New York

Craft v. Peekskill Lighting & Railroad

121 A.D. 549, 106 N.Y.S. 232, 1907 N.Y. App. Div. LEXIS 1833

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 18, 1907

StatusPublished

Cited by3 cases

This text of 121 A.D. 549 (Craft v. Peekskill Lighting & Railroad) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Craft v. Peekskill Lighting & Railroad, 121 A.D. 549, 106 N.Y.S. 232, 1907 N.Y. App. Div. LEXIS 1833 (N.Y. Ct. App. 1907).

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Opinion

Gaynor, J.:

The plaintiff’s cows strayed along the country highway, at night, and one of them was-killed by.the defendant’s electric car thereon while crossing in front of it. That the cow was killed is riot.enough to prove that the defendant was negligent and therefore liable. And yet that is all this verdict is based on. The .plaintiff gave no evidence of how the thing happened. The defendant called the niotorman, who testified that the cow suddenly appeared before him about to cross the track 30 feet ahead. He did all he could to stop his car but could not stop it in time. ’ The plaintiff’s lack of evi-. deuce cannot be eked out by saying the motorman’s evidence is improbable, or colored, or does not seem to be truthful; there must be evidence to support the verdict. It may well be that the cow did what we well know from our experience here that Iranian beings often do, viz., suddenly went upon. the track. We may be able to see that if she had been walking along the track for a. considerable distance the motorman should have seen her in time; but we have no such case here (Dettmers v. Brooklyn Heights R. R. Co., 22 App. Div. 488).

The judgment should be reversed.

Jenks, Rich and Miller, JJ., concurred; Hooker, J., dissented.

Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs- to abide the event,

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Gaynor, J.:

The plaintiff’s cows strayed along the country highway, at night, and one of them was-killed by.the defendant’s electric car thereon while crossing in front of it. That the cow was killed is riot.enough to prove that the defendant was negligent and therefore liable. And yet that is all this verdict is based on. The .plaintiff gave no evidence of how the thing happened. The defendant called the niotorman, who testified that the cow suddenly appeared before him about to cross the track 30 feet ahead. He did all he could to stop his car but could not stop it in time. ’ The plaintiff’s lack of evi-. deuce cannot be eked out by saying the motorman’s evidence is improbable, or colored, or does not seem to be truthful; there must be evidence to support the verdict. It may well be that the cow did what we well know from our experience here that Iranian beings often do, viz., suddenly went upon. the track. We may be able to see that if she had been walking along the track for a. considerable distance the motorman should have seen her in time; but we have no such case here (Dettmers v. Brooklyn Heights R. R. Co., 22 App. Div. 488).

The judgment should be reversed.

Jenks, Rich and Miller, JJ., concurred; Hooker, J., dissented.

Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs- to abide the event,

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121 A.D. 549, 106 N.Y.S. 232, 1907 N.Y. App. Div. LEXIS 1833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/craft-v-peekskill-lighting-railroad-nyappdiv-1907.

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