Johnson v. Parker

New York Court of Common Pleas

Johnson v. Parker

28 N.Y.S. 146, 7 Misc. 685, 58 N.Y. St. Rep. 332

DecidedApril 2, 1894

StatusPublished

This text of 28 N.Y.S. 146 (Johnson v. Parker) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. Parker, 28 N.Y.S. 146, 7 Misc. 685, 58 N.Y. St. Rep. 332 (N.Y. Super. Ct. 1894).

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Opinion

BISCHOFF, J.

Plaintiff sued to recover damages for an injury to his bicycle, alleged to have been caused by the negligence of defendant’s servant. The facts appearing from the record are that on a certain day plaintiff, after riding the bicycle for some distance, returned to his home for his overcoat, and left the machine against the curb in front of Ms dwelling; that a few moments after-wards he looked out of an upper window to keep watch of the bicycle, and saw the defendant’s ice wagon drive to the curb, and over the chattel in question, thereby causing the injury for wMch damages pve sought.. There is sufficient evidence as to the negligence of the driver of the wagon, and of defendant’s relation to him, to support a recovery upon the undisputed facts, and the justice was well justified in finding that the plaintiff was not chargeable with contributory negligence. The exceptions taken by the appellant are unavailing for the purposes of review, the ground of the objection not being stated (Malcolm v. Lyon [Com. Pl. N. Y.] 19 N. Y. Supp. 210; Myers v. Cohn [Com. Pl. N. Y.] 23 N. Y. Supp. 996); but, in any event, they do not present grounds for reversal. In view of the evidence adduced, the motion to dismiss the complaint was properly denied. On the undisputed evidence, however, as to the value of the chattel before and after the injury, the award of $150 damages cannot be supported. That, at the time of the injury, the bicycle was worth $150, is the conclusion reached by both the plaintiff’s and the defendant’s experts; but these witnesses also agree that the value of the chattel, unrepaired, is $20. Taking the most favorable view of the evidence, the recovery should not exceed $130. Therefore, the judgment must be reversed, and a new trial ordered, with costs to abide the event, unless the respondent shall stipulate to reduce the amount recovered by $20, in wMch case .the judgment is affirmed, without costs.

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BISCHOFF, J.

Plaintiff sued to recover damages for an injury to his bicycle, alleged to have been caused by the negligence of defendant’s servant. The facts appearing from the record are that on a certain day plaintiff, after riding the bicycle for some distance, returned to his home for his overcoat, and left the machine against the curb in front of Ms dwelling; that a few moments after-wards he looked out of an upper window to keep watch of the bicycle, and saw the defendant’s ice wagon drive to the curb, and over the chattel in question, thereby causing the injury for wMch damages pve sought.. There is sufficient evidence as to the negligence of the driver of the wagon, and of defendant’s relation to him, to support a recovery upon the undisputed facts, and the justice was well justified in finding that the plaintiff was not chargeable with contributory negligence. The exceptions taken by the appellant are unavailing for the purposes of review, the ground of the objection not being stated (Malcolm v. Lyon [Com. Pl. N. Y.] 19 N. Y. Supp. 210; Myers v. Cohn [Com. Pl. N. Y.] 23 N. Y. Supp. 996); but, in any event, they do not present grounds for reversal. In view of the evidence adduced, the motion to dismiss the complaint was properly denied. On the undisputed evidence, however, as to the value of the chattel before and after the injury, the award of $150 damages cannot be supported. That, at the time of the injury, the bicycle was worth $150, is the conclusion reached by both the plaintiff’s and the defendant’s experts; but these witnesses also agree that the value of the chattel, unrepaired, is $20. Taking the most favorable view of the evidence, the recovery should not exceed $130. Therefore, the judgment must be reversed, and a new trial ordered, with costs to abide the event, unless the respondent shall stipulate to reduce the amount recovered by $20, in wMch case .the judgment is affirmed, without costs.

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Bluebook (online)

28 N.Y.S. 146, 7 Misc. 685, 58 N.Y. St. Rep. 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-parker-nyctcompl-1894.

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