Craft v. Peekskill Lighting & Railroad — 128 A.D. 878

Majority

p. 878

George E. Craft, Appellant, v. Peekskill Lighting and Railroad Company, Respondent.

Second Department,

November 27, 1908.

Headnote

. Railroad—negligence — injury to cow by trolley car.

Action to recover the value of a cow'whitih was struck and killed by the defend?' ant’s trolley car. The. animal with three-others was first seen by the motorman-when seventy-five or eighty feet distant at a place where a steep bank and wall arose from the .side of the track, leaving a space only eight or ten feet wide. He took no precaution whatever when he saw them, but “kept moving right along.” The cow "which was struck started to cross the track when' the car was from forty to fifty feet distant: On all the evidence; - Held, that in view.of-the close proximity of the cows to the track, they being confused by the physical conditions, the negligence of the defendant was for the jury. . .

Reargument of an appeal by the plaintiff, George E. Craft, from a--judgment of the County Court of Westchester- county in favor of the- defendant, entered in the office of the clerk of said county on the 7th day of December, 1907, and also from an order bearing- date the 7th day of December, 1907, and.entered in said, clerk’s office denying the plaintiff’s motion- for a hew trial. (See 126 App. Div, 936 .)

Eugene B. Travis, for the appellant.

Nathan P. Bushnell, for the respondent.

We , décided that the judgment for the plaintiff at the first trial could not stand because of failure' to show “ how the thing happened ; ” and we also noted the fact that the defendant’s motorman.'

p. 879

testified that the plaintiff’s cow appeared suddenly before him, 30 feet ahead, as about to cross the track of his car, and that the record ' showed that the- motorman did all in ■ his power to arrest the car before it struck the cow. ( 121 App. Div. 550 .) But on further review of the second trial, and in consideration of the additional evidence, we think that the judgment of dismissal at the close of plaintiff’s case was erroneous. The trolley surface road of the defendant was along a highway through the lands of the plaintiff. The time of the accident was 11 o’clock, p. m., but the moon was full. The motorman saw 4 cows ahead of him on the west side of the track at a place where there was a steep bank and a wall. He first saw the cows on that bank or in the gutter 75 or 80 feet away. The space between the wall and the west rail was 8 or 10 feet wide. As the car went along, the cow, afterwards struck by the car, started to go onto the track. The motorman supposed that the animal was about to cross the track when his car was 40 or 50 feet distant from her. When he first saw the cows 75 feet away they were in a safe place and he judged that his car could proceed without striking them. He took no precaution whatever when he thus saw them, but “ kept moving right along.” We think it was for the jury to say, in view of the proximity of the cows to the track, confined as they were by the physical conditions which we •have described, whether the motorman exercised due care in running his car without taking any precautions to avoid any possible accident.. It is well to note the fact that the additional evidence is not subject to the criticism that it was furnished by friendly witnesses to eke out or to obviate the shortcomings of the plaintiff’s case on the first trial, but that it was obtained from the lips of the defendant’s motorman.

The judgment should be reversed and a new trial should be ordered, costs to abide the event.

Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment and order of the County Court of Westchester county reversed on reargument, and new trial ordered, costs to abide the event.

p. 881

CASES EEPOETED WITH BEIEF SYLLABI AND . DECISIONS HANDED DOWN WITHOUT OPINION.