Herbst v. New York City Railway Co.

Appellate Terms of the Supreme Court of New York

Herbst v. New York City Railway Co.

93 N.Y.S. 1109

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 23, 1905

StatusPublished

This text of 93 N.Y.S. 1109 (Herbst v. New York City Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herbst v. New York City Railway Co., 93 N.Y.S. 1109 (N.Y. Ct. App. 1905).

Pincite

Opinion

SCOTT, P. J.

I do not think that we ought to affirm this judgment. The evidence leaves it much in doubt whether the car hit the cab at all, but, assuming that it did, I cannot find any satisfactory evidence that the collision was due to defendant’s negligence. Plaintiff’s witnesses appear to say that the horse backed the cab onto the cai tracks, and no evidence is given showing how far away the car was at the time. For all that appears, the cab may have backed into the car, or so close to it that the motorman could not stop in time to avoid a collision. On the whole case, it cannot be said any negligence on defendant’s part was shown. The damages also seem to be large. On the whole, justice would be best satisfied if the case be sent back for a retrial.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event. All concur.

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SCOTT, P. J.

I do not think that we ought to affirm this judgment. The evidence leaves it much in doubt whether the car hit the cab at all, but, assuming that it did, I cannot find any satisfactory evidence that the collision was due to defendant’s negligence. Plaintiff’s witnesses appear to say that the horse backed the cab onto the cai tracks, and no evidence is given showing how far away the car was at the time. For all that appears, the cab may have backed into the car, or so close to it that the motorman could not stop in time to avoid a collision. On the whole case, it cannot be said any negligence on defendant’s part was shown. The damages also seem to be large. On the whole, justice would be best satisfied if the case be sent back for a retrial.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

93 N.Y.S. 1109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herbst-v-new-york-city-railway-co-nyappterm-1905.