Kear v. New York City Railway Co.

Appellate Terms of the Supreme Court of New York

Kear v. New York City Railway Co.

104 N.Y.S. 444

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 16, 1907

StatusPublished

This text of 104 N.Y.S. 444 (Kear 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

Kear v. New York City Railway Co., 104 N.Y.S. 444 (N.Y. Ct. App. 1907).

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Opinion

SEABURY, J.

The plaintiff has recovered a judgment for $165.97 as damages for injuries to a two-wheeled gig, caused by collision with one of the defendant’s cars. The evidence upon the trial presented a sharp conflict; the plaintiff and two witnesses testifying that the gig was struck by a north-bound car, and three witnesses called by the defendant testifying that the gig was struck by a south-bound car. The accident happened at the intersection of Fifty-Sixth street and Second avenue, in the borough of Manhattan. At the place where the accident occurred it was the duty of the railroad company, as the court said in Harvey v. Nassau Electric Railway Company, 35 App. Div. 307, 55 N. Y. Supp. 20, “to exercise reasonable care in operation, to be watchful and vigilant when approaching street crossings, and to have the car well under control.” The evidence was to the effect that as the car approached Fifty-Sixth street it was going “very fast,” and that it did not slacken its speed as it approached the crossing. When the driver in charge of the gig was 35 or 40 feet from the track, he looked uptown and downtown, and was driving slowly.

Upon the whole testimony the questions as to whether the defendant was negligent and the driver of the gig free from contributory negligence were for the jury, and the verdict rendered cannot be dis[445]*445turbed as being contrary to the weight of evidence. The case was submitted to the jury in a charge to which the defendant took no exception. The evidence as to the value of the repairs was doubtless not the best that could have been offered, but sufficient- evidence was received on this subject, without objection being made to its reception or exception taken, to sustain the verdict of the jury.

Judgment affirmed, with costs. All concur.

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SEABURY, J.

The plaintiff has recovered a judgment for $165.97 as damages for injuries to a two-wheeled gig, caused by collision with one of the defendant’s cars. The evidence upon the trial presented a sharp conflict; the plaintiff and two witnesses testifying that the gig was struck by a north-bound car, and three witnesses called by the defendant testifying that the gig was struck by a south-bound car. The accident happened at the intersection of Fifty-Sixth street and Second avenue, in the borough of Manhattan. At the place where the accident occurred it was the duty of the railroad company, as the court said in Harvey v. Nassau Electric Railway Company, 35 App. Div. 307, 55 N. Y. Supp. 20, “to exercise reasonable care in operation, to be watchful and vigilant when approaching street crossings, and to have the car well under control.” The evidence was to the effect that as the car approached Fifty-Sixth street it was going “very fast,” and that it did not slacken its speed as it approached the crossing. When the driver in charge of the gig was 35 or 40 feet from the track, he looked uptown and downtown, and was driving slowly.

Upon the whole testimony the questions as to whether the defendant was negligent and the driver of the gig free from contributory negligence were for the jury, and the verdict rendered cannot be dis[445]*445turbed as being contrary to the weight of evidence. The case was submitted to the jury in a charge to which the defendant took no exception. The evidence as to the value of the repairs was doubtless not the best that could have been offered, but sufficient- evidence was received on this subject, without objection being made to its reception or exception taken, to sustain the verdict of the jury.

Judgment affirmed, with costs. All concur.

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104 N.Y.S. 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kear-v-new-york-city-railway-co-nyappterm-1907.

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