Smith v. Metropolitan Street Railway Co.

59 A.D. 60, 69 N.Y.S. 176

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

Opinion

Hirschberg, J. :

The plaintiff was injured on January 5, 1897, between six and seven o’clock in the afternoon, while a passenger on the defendant’s Lexington Avenue line in Manhattan borough, New York, The cars are run by cable power, and a break in the cable caused the car behind the one in which the plaintiff was riding to run away at or about Eighty-seventh street, whereupon it collided with the one in which the plaintiff was, at or near Ninety-fourth street, and the two continued to Ninety-sixth street where a second collision occurred with a car ahead, and the plaintiff received her injuries. The speed of the cable was said to be ten miles an hour, but from the time required to make its circuit it is evident that its actual speed was between eleven and twelve miles an hour.

The learned counsel for the appellant argues with his usual force and acumen that the presumption of the defendant’s negligence arising from the happening of the accident was completely overcome by the testimony, and that the complaint should accordingly have been dismissed. The evidence did indeed establish the fact that the cable was the best in use; that a system.of constant inspection was in operation; and that the 'defect in the cable which caused the accident was not discovered in time to prevent the occurrence; nevertheless it was proper to submit the case to the jury, and a non-suit would have been error.

The cable is 43,000 feet long. It traverses the distance covered by its operation, viz., from Twenty-fifth street to One Hundred and Twenty-fifth street and return, every forty-two minutes. The system of inspection consists chiefly in stationing men at the power house at Twenty-fifth street, to watch the cable as it is paid out, in order to discover defects, and a given point is thus under observation once in every forty-two minutes. The watchers on the afternoon in question, Mansfield and Nelson, were not called as witnesses. Mansfield was said to be in Mexico, but Nelson was in New York, and the evidence of the defendant’s inability to procure his attendance might very well be regarded by the jury as unsatisfactory. The cable was stranded at the point where it had been spliced. Moore, who had the supervision of the operation of the cables, and whose duty it was to splice and repair them, testified that he made the splice eight days before the accident. He also testified that a splice would last on the average five or six weeks. The fact that this particular splice broke so unusually soon after it was made is certainly some evidence that the work was defectively done, and although Moore is corroborated by another splicer, Hamilton, and both testify that the work was thoroughly and carefully done, and the cable in apparent perfect order a few hours before it broke, yet their credibility was a proper question for the jury inasmuch as their own negligence was a direct issue.

In Volkmar v. Manhattan R. Co. (134 N. Y. 418) the Court of Appeals held that the fall of a broken bolt from the defendant’s elevated structure was sufficient to raise a presumption of negligence; that the evidence of the inspector that his duty was to' carefully examine the bolts for the discovery of breaks, and that he performed such duty to the best of his ability, was not sufficient to overcome the presumption; but that, even if it was, the fact that he was an interested person, who might be actuated by a motive to shield himself from blame, involved his credibility, and so presented a question for the jury. To the same effect is O’ Flaherty v. Nassau Electric R. R. Co. (34 App. Div. 74). The authority of these cases abundantly justified the 'submission of the question of defendant’s negligence to the jury, and, considered in ■ connection with the failure to produce the watcher on duty the afternoon of the accident and residing in the city at the time of the trial, should preclude the possibility of a nonsuit.

The case of McGrell v. Buffalo Office Buildmg Co. (153 N. Y. 265) is not controlling on the general question of defendant’s liability. In that case the accident resulted from the mode of operation, and not from any defect in the appliances producing or transmitting power. Judge Martin recognized, however, in that case, as a possible rule, that (271): “ As to the machinery and appliances by which an elevator is moved and controlled in its ascent and descent, an owner is bound to use the utmost care as to any defect which would be liable to occasion great danger or loss of life, and that he is in that respect subject to the same rule that applies to a railroad company in regard to its roadbed, engine and other similar machinery.”

Under the circumstances, the exclusion of the written reports of the two watchers, Mansfield and Nelson, was not reversible error. These reports were marked for identification and are printed in the case, and it is evident that nothing contained in them could affect the determination of the question of the care with which the splice was made or that of the credibility of the witnesses in regard to it.

The damages are not excessive and the judgment and order should be affirmed. '

Judgment and order unanimously affirmed, with costs, Goodrich, P. J., however, being of the opinion that the recovery should be reduced; Sewell, J., not sitting.