Dettmers v. Brooklyn Heights Railroad

22 A.D. 488, 48 N.Y.S. 23

Opinion

Per Curiam:

There was no sufficient evidence in this case upon which to predicate negligence of the defendant. The only testimony upon the part of the plaintiff is that the car was running terribly fast — faster than usual. But this rate of speed, assuming it to have been a negligent management of the car, was not shown to have been the cause of the accident resulting in the death of the dog. The accident happened in the middle of a block. No one saw the dog until he was under the car. How he got there is not explained by any one. The motorman says he was not upon the track in front of the the car, nor does any one so testify. If he' came on the track suddenly and interposed himself in front of the car, or came so close to the side of the car that he was caught, no liability would be incurred for his death, even though the car was run at a rapid rate. Plow the dog was caught is matter for speculation and conjecture. No proof establishes the fact, either directly or inferentially. Consequently, it is impossible to say that the running down of the dog was the result of a negligent act. No liability, therefore, upon the part of the defendant was established.

The judgment of the County Court and of the justice should, therefore, be reversed, with costs.

All concurred.

Judgment of the County Court and that of the justice reversed and new trial granted, costs to abide the event, before the same justice, at a time to be fixed.