Smith v. Interborough Rapid Transit Co.

Appellate Terms of the Supreme Court of New York

Smith v. Interborough Rapid Transit Co.

121 Misc. 673

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 15, 1923

StatusPublished

This text of 121 Misc. 673 (Smith v. Interborough Rapid Transit 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

Smith v. Interborough Rapid Transit Co., 121 Misc. 673 (N.Y. Ct. App. 1923).

Pincite

Opinion

Guy, J.

The infant plaintiff, in the custody of her mother, was a passenger on a subway train operated by the defendant. Before [674]*674reaching plaintiff’s destination the train on which plaintiff was a passenger stopped suddenly and became filled with smoke to such an extent that the passengers, by direction of defendant’s employee in charge of said train, were compelled to pass through eight smoke-filled cars and ascend to the street by means of a ladder after passing through the last car. Plaintiff claims to have been injured by the inhaling of the smoke, and sues to recover damages therefor. Plaintiff’s physician, who attended her on the day of the occurrence and for two days thereafter, testified that he found plaintiff suffering from “ irritation and congestion of the lungs and the large bronchial tubes,” for which he treated her, and that her condition was caused by “ some irriting substance which had probably been inhaled ” and that “ smoke could cause it.”

At the close of plaintiff’s case the court, on motion of defendant’s counsel, dismissed the complaint on the ground that plaintiff had failed to prove negligence on the part of defendant. In so ruling the learned court erred. The car and the tube in which it was being operated by the defendant being in defendant’s control, it was defendant’s duty to use reasonable care to transport its passengers in safety. The smoke-filled condition of the car in which plaintiff was seated and the other cars through which plaintiff was compelled to pass to make her exit in safety was a condition which would not exist in the usual course of events in the absence of negligence on the part of the defendant, which was in control thereof and in the absence of explanation as to the cause of such condition the defendant would be liable for damages suffered by its passengers by reason thereof.

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

Bijur and Mullan, JJ., concur.

Judgment accordingly.

Free access — add to your briefcase to read the full text and ask questions with AI

Guy, J.

The infant plaintiff, in the custody of her mother, was a passenger on a subway train operated by the defendant. Before [674]*674reaching plaintiff’s destination the train on which plaintiff was a passenger stopped suddenly and became filled with smoke to such an extent that the passengers, by direction of defendant’s employee in charge of said train, were compelled to pass through eight smoke-filled cars and ascend to the street by means of a ladder after passing through the last car. Plaintiff claims to have been injured by the inhaling of the smoke, and sues to recover damages therefor. Plaintiff’s physician, who attended her on the day of the occurrence and for two days thereafter, testified that he found plaintiff suffering from “ irritation and congestion of the lungs and the large bronchial tubes,” for which he treated her, and that her condition was caused by “ some irriting substance which had probably been inhaled ” and that “ smoke could cause it.”

At the close of plaintiff’s case the court, on motion of defendant’s counsel, dismissed the complaint on the ground that plaintiff had failed to prove negligence on the part of defendant. In so ruling the learned court erred. The car and the tube in which it was being operated by the defendant being in defendant’s control, it was defendant’s duty to use reasonable care to transport its passengers in safety. The smoke-filled condition of the car in which plaintiff was seated and the other cars through which plaintiff was compelled to pass to make her exit in safety was a condition which would not exist in the usual course of events in the absence of negligence on the part of the defendant, which was in control thereof and in the absence of explanation as to the cause of such condition the defendant would be liable for damages suffered by its passengers by reason thereof.

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

Bijur and Mullan, JJ., concur.

Judgment accordingly.

Cite This Page — Counsel Stack

Bluebook (online)

121 Misc. 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-interborough-rapid-transit-co-nyappterm-1923.