Day v. Brooklyn City Railroad

Appellate Division of the Supreme Court of New York

Day v. Brooklyn City Railroad

199 A.D. 179, 191 N.Y.S. 484, 1921 N.Y. App. Div. LEXIS 6632

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

DecidedDecember 16, 1921

StatusPublished

This text of 199 A.D. 179 (Day v. Brooklyn City 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.

Bluebook

Day v. Brooklyn City Railroad, 199 A.D. 179, 191 N.Y.S. 484, 1921 N.Y. App. Div. LEXIS 6632 (N.Y. Ct. App. 1921).

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Opinions

Putnam, J.:

Here was an issue of fact, as to the accident, coupled with a wide variance between medical men as to plaintiff’s alleged injuries. The driver of the milk truck stated that the car went by a “ stop ’.’ sign. But the jury could well accept testimony from the railroad that there was no “ stop ” sign at Arlington place, hence that the truck driver’s recollection had confused this place (where there is no cross street) with Nostrand avenue. The jury were not required to accept the estimate of the truck driver that the car went eight to ten miles an hour. Apparently they chose to take the motorman’s own testimony of five miles an hour, rather than an estimate from one on a vehicle passing in an opposite direction.

After the front of the truck passed the car front, with [181]*181sufficient clearance, the later side contact raised a question for the jury. Was this slue on the ice by want of reasonable care? Should the truck driver have come to a stop until the car passed?

When plaintiff rested, the railroad company went forward with its proofs, which made out a good explanation as against its passenger. (Freeland v. Brooklyn Heights Railroad Co., 109 App. Div. 651.) The evidencé from plaintiff (even without that from the defense) shows a state of facts — makes an explanation — and that explanation did not establish negligence on the part of the carrier. In a similar appeal this court declared: “ To hold that a clearance of not less than eighteen inches was not sufficient for the passage of a trolley car in the streets of the great city of New York and its principal boroughs, would be to practically stop all traffic, and the law is not thus impracticable.” (Rosenblum v. Brooklyn Heights Railroad Co., 153 App. Div. 304, 306.) Where such issues went to the jury without a single exception, we must be shown strong reasons to reject their verdict. I do not find any in the instruction (which seems to me vitally essential) that in order for plaintiff to recover, want of care must be proved as against one or both defendants.

Hence I advise that the judgments and order be affirmed, with costs.

Blackmar, P. J., Mills and Rich, JJ., concur; Kelly, J., reads for reversal.

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Putnam, J.:

Here was an issue of fact, as to the accident, coupled with a wide variance between medical men as to plaintiff’s alleged injuries. The driver of the milk truck stated that the car went by a “ stop ’.’ sign. But the jury could well accept testimony from the railroad that there was no “ stop ” sign at Arlington place, hence that the truck driver’s recollection had confused this place (where there is no cross street) with Nostrand avenue. The jury were not required to accept the estimate of the truck driver that the car went eight to ten miles an hour. Apparently they chose to take the motorman’s own testimony of five miles an hour, rather than an estimate from one on a vehicle passing in an opposite direction.

After the front of the truck passed the car front, with [181]*181sufficient clearance, the later side contact raised a question for the jury. Was this slue on the ice by want of reasonable care? Should the truck driver have come to a stop until the car passed?

When plaintiff rested, the railroad company went forward with its proofs, which made out a good explanation as against its passenger. (Freeland v. Brooklyn Heights Railroad Co., 109 App. Div. 651.) The evidencé from plaintiff (even without that from the defense) shows a state of facts — makes an explanation — and that explanation did not establish negligence on the part of the carrier. In a similar appeal this court declared: “ To hold that a clearance of not less than eighteen inches was not sufficient for the passage of a trolley car in the streets of the great city of New York and its principal boroughs, would be to practically stop all traffic, and the law is not thus impracticable.” (Rosenblum v. Brooklyn Heights Railroad Co., 153 App. Div. 304, 306.) Where such issues went to the jury without a single exception, we must be shown strong reasons to reject their verdict. I do not find any in the instruction (which seems to me vitally essential) that in order for plaintiff to recover, want of care must be proved as against one or both defendants.

Hence I advise that the judgments and order be affirmed, with costs.

Blackmar, P. J., Mills and Rich, JJ., concur; Kelly, J., reads for reversal.

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199 A.D. 179, 191 N.Y.S. 484, 1921 N.Y. App. Div. LEXIS 6632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-brooklyn-city-railroad-nyappdiv-1921.

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