Hoag v. South Dover Marble Co.

50 Misc. 499, 100 N.Y.S. 639

• Court: New York County Courts
• Decided: May 15, 1906
• Status: Published

Opinion

Phillips, J.

In this case the evidence most favorable to the plaintiff/of the facts from which the negligence of the defendant ¿an be reasonably inferred, is the plaintiff’s own testimony that, as she was proceeding along the highway driving gentle horse, having just safely passed over the defendant’s track at a crossing, while passing a car of the defend,int which had been stopped to allow her to pass, then not in/ motion, her horse became frightened at the noise causecjl by compressed air escaping from the car, ran away, and sine being thrown from her wagon sustained injuries, the basis/of this action.

It appears from the evidence that the defendant operates a railroad from Wingdale on the Harlem railroad several milds easterly to their quarries, by electric power; the cars, are] fitted with compressed air brakes; in order to start a Ear which has been stopped by the use of the air, the air 'must be allowed to escape from the cylinder, causing a hissing noise. The plaintiff testifies that the noise which she claims frightened her horse was the usual noise made when the cars are being started. The plaintiff had safely passed in front of the car, had reached a point on the highway opposite the middle of the ear, and her horse had shown no sign of fear.

This evidence is not, in my opinion, sufficient to impute negligence to the defendant and to support the verdict. Larsen v. U. S. Mortgage & Trust Co., 104 App. Div. 76; Helgers v. Staten Island Midland R. Co., 69 id. 570; Fawdrey v. Brooklyn Heights R. R. Co., 64 id. 418.

Motion to set aside verdict as against the weight of evidence, and for a new trial, is granted upon payment of the costs of trial and disbursements of action to date.

Motion granted.