H. Koehler & Co. v. Brooklyn Heights Railway Co.

111 N.Y.S. 600

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 7, 1908
• Status: Published

Opinion

SEABURY, J.

This action is brought to recover damages for the death of a horse alleged to have been ki'led through the negligence of the defendant. The appellant claims that the plaintiff failed to establish that its driver was free from contributory negligence and to sustain the burden of proof showing that the defendant was negligent. The plaintiff’s agent was driving two horses attached to a heavily loaded wagon. While goipg through Huron street, and attempting to cross the railway tracks on Manhattan avenue, his truck was -struck by the defendant’s car. The driver testified that he looked and saw no car approaching from the north, but that, while he was on the north-bound track, he saw a south-bound car 50 or 75 feet away from him. He testified that to avoid the accident he turned his horses to the left; but the car, which was going rapidly, struck his truck. There was testimony that the motorman made no effort to sbcken the speed of his car and Sounded no gong. The plaintiff was corroborated by two disinterested witnesses, while the defendant called no witnesses and offered no proof. I think the evidence sufficient to sustain the judgment rendered.

Judgment affirmed, with costs. All concur.