Fleckenstein v. Dry Dock

New York Court of Appeals

Fleckenstein v. Dry Dock

1 Silv. Ct. App. 447, 8 N.Y. St. Rep. 32

DecidedApril 19, 1887

StatusPublished

This text of 1 Silv. Ct. App. 447 (Fleckenstein v. Dry Dock) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fleckenstein v. Dry Dock, 1 Silv. Ct. App. 447, 8 N.Y. St. Rep. 32 (N.Y. 1887).

Pincite

Opinion

Earl, J.

The evidence of the plaintiff tended to show that, while he was engaged in trying to remove his team and wagon from the track of defendant’s road, one of its drivers carelessly drove one of its cars against him, and caused the injury of which he complains. This evidence was controverted on the part of the defendant, and hence [448]*448there.was a question of fact for the jury, and their decision thereon is not reviewable here.

The trial judge did not err in charging the jury that the defendant did not have the exclusive right to the use of its tracks, but simply the paramount right. Street railways have the lawful right to put their, tracks in streets, and run their cars thereon. Their cars are confined to the tracks, and cannot turn out to avoid obstacles thereon. Hence they have the right of way, and persons lawfully driving upon the same tracks must not recklessly, carelessly or willfully obstruct the passage of their cars. But such persons are not absolutely bound to keep off or get off, from the tracks. They must fairly and in a reasonable manner respect the paramount right of a street railway; and if they do this, and.without any fault on their part they are injured by carelessness or fault chargeable to the railway, the law affords them a remedy by action for damages.

The judgment should be affirmed.

All concur.

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Earl, J.

The evidence of the plaintiff tended to show that, while he was engaged in trying to remove his team and wagon from the track of defendant’s road, one of its drivers carelessly drove one of its cars against him, and caused the injury of which he complains. This evidence was controverted on the part of the defendant, and hence [448]*448there.was a question of fact for the jury, and their decision thereon is not reviewable here.

The trial judge did not err in charging the jury that the defendant did not have the exclusive right to the use of its tracks, but simply the paramount right. Street railways have the lawful right to put their, tracks in streets, and run their cars thereon. Their cars are confined to the tracks, and cannot turn out to avoid obstacles thereon. Hence they have the right of way, and persons lawfully driving upon the same tracks must not recklessly, carelessly or willfully obstruct the passage of their cars. But such persons are not absolutely bound to keep off or get off, from the tracks. They must fairly and in a reasonable manner respect the paramount right of a street railway; and if they do this, and.without any fault on their part they are injured by carelessness or fault chargeable to the railway, the law affords them a remedy by action for damages.

The judgment should be affirmed.

All concur.

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Bluebook (online)

1 Silv. Ct. App. 447, 8 N.Y. St. Rep. 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleckenstein-v-dry-dock-ny-1887.