Rubein v. Brooklyn Heights Railroad

61 A.D. 478, 70 N.Y.S. 577

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1901
• Status: Published

Opinion

Jenks, J.:

This is an appeal from a judgment of the Municipal Court for the plaintiff, in an action for negligence tried without a jury. The plaintiff complained that while his horse was lawfully upon a public highway in the borough of Brooklyn, which was crossed by the defendant’s track, the defendant negligently and carelessly ran one of its cars, at a high rate of speed, into the horse and killed him. The plaintiff went into his yard to water his horse, the plaintiff and his son attempted to hitch the horse, but he jumped or dragged away, went over the fields, then down Second street to Henry street, thence through, vacant lots, and so gained the street. The absence of any fence was first brought out by the cross-examination of the motorman who was called by the plaintiff. Thereupon the case shifted, and the existence of a fence or its absence became the chief subject of contention. The defendant did not make any objection; on the contrary, it accepted this issue and fought it out. It moved for a dismissal on the merits at the close of plaintiff’s case, but it did not even renew the motion when all the evidence had been put in. It is now contended that the action was not based upon the. statute (Railroad Law, Laws of 1890, chap. 565, § 32), and that the variance between pleadings ■ and proof is too wide now to admit of amendment. I think that the defendant’s mouth is now closed. (Frear v. Sweet, 118 N. Y. 454; Farmers’ L. & T. Co. v. Housatonic R. R. Co., 152 id. 251.) This court may, in support of the judgment, treat the pleadings as if, amended in conformity with the proof. (Howell v. Grand Trunk R. Co., 92 Hun, 423.) I think that the statute applies to the locality in question. Crawford v. N. Y. C. & H. R. R. R. Co. (18 Hun, 108), with the authorities cited, is directly in point and is as applicable to the present statute as to that then up for construction. (Dayton v. N. Y., L. E. & W. R. R. Co., 81 Hun, 284.) The fact that the horse traveled for some distance before he gained the street is not enough to defeat the right of action. (Connolly v. Central Vermont R. R. Co., 4 App. Div. 221; Dayton v. N. Y., L. E. & W. R. R. Co., supra.)

The júdgment must be affirmed, with costs.

Judgment of the Municipal Court unanimously affirmed, with costs.