Lejoune v. Dry Dock, East Broadway & Battery Railroad

86 N.Y.S. 749

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 23, 1904
• Status: Published

Opinion

McCALL, J.

Under the charge in this case the court allowed the case to go to the jury on the sole question “whether the driver was negligent in driving his horse at a gallop and beyond the ordinary gait of a horse car.” He thereby erroneously relieved the plaintiff of the duty of establishing his freedom from contributory negligence, and the judgment cannot stand. It was also error to refuse the request of the defendant “that, inasmuch as the accident happened between the blocks, the defendant had a paramount right of way,” and under the circumstances of this case this error was highly prejudicial. For the reasons assigned there must be a new trial, and on same the proof of damage alleged to have been suffered should be taken only to the extent of supporting the claim as itemized in the bill of particulars.

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