Jones v. Union Railway Co.

50 Misc. 651, 98 N.Y.S. 757

Opinion

Scott, J.

The defendant operates its railway by means of an overhead trolley. About half-past five o’clock, on the 20th day of August, 1905, the plaintiff was driving a truck with two horses along defendant’s track, when one of the horses came into contact with a.wire which had, by some means, been thrown over and then hung from defendant’s feed wire. The horse received an electrical shock from which it immediately died. The wire was not of a kind used by the defendant and evidently was no part of its equipment, and the circumstances pointed irresistibly to the conclusion that some mischievous person had thrown this loose piece of wire over defendant’s feed wire and left it dangling there. There' was no evidence how long the wire had been in this position, except that one of defendant’s motormen said that he had passed the spot eight minutes before and had not observed it. Under these circumstances, there was no evidence of defendant’s negligence to submit to the jury. We think also that the justice erred in withdrawing from the jury altogether any question as to plaintiff’s negligence. While he had a right to assume that the road would be unobstructed, he was not wholly relieved from the obligation to be reasonably vigilant in watching for unexpected and unusual obstacles; and it was, at least, a question for the jury whether, if he had been so vigilant, he would not have seen the wire before he reached it.

Truax and Bischoff, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.