Lundy v. Second Avenue Railroad

20 N.Y.S. 691, 1 Misc. 100, 48 N.Y. St. Rep. 676

• Court: New York Court of Common Pleas
• Decided: November 7, 1892
• Status: Published

Opinions

Pryor, J.

If upon any construction of the evidence it be sufficient to authorize a verdict for the plaintiff, the dismissal of the complaint was error. Stackus v. Railroad Co., 79 N. Y. 464; Clemence v. City, 66 N. Y. 334, 338. Hence, if the inferences from the evidence be not certain and incontrovertible, the question of negligence is for determination by the jury. Hart v. Bridge Co., 80 N. Y. 622. Upon the evidence before us the jury would have been warranted in the conclusion that the driver might have so started the car as to arrest its retrograde movement; or, if this were impossible, that ordinary care required him to'give notice to persons in the way of probable injury. “To justify a nonsuit, on the ground of contributory negligence, the undisputed facts must show the omission or commission of some act which the law adjudges negligence.” Stackus v. Railroad Co., supra. Clearly, no act of the plaintiff can be held to be negligence, as matter of law. Conlin v. Rodgers, (Com. Pl. N. Y.) 14 N. Y. Supp. 782, is authority only for the proposition that, in the absence of any evidence as to the occasion of the injury,—in other words, in the absence of evidence on the issue of negligence, —a nonsuit is inevitable. Dobbins v. Brown, 119 N. Y. 188, 23 N. E. Rep. 537. Here, the cause of the injury was demonstrated; and we are unable to affirm that it is equally consistent with inferences fatal and favorable to the plaintiff’s case. The conclusion is that the judgment should be reversed, and a new trial ordered, costs to abide the event.

Daly, C. J., concurs.