Kascsak v. Central Railroad Co. of New Jersey

Majority

p. 721

John Kascsak, Appellant, v. Central Railroad Company of New Jersey, Respondent.

Second Department,

December 3, 1909.

Headnote

Judgment — former reversal — lacking evidence supplied on new trial

Where a judgment in a negligence action was reversed because the jury had predicated negligence upon the defendant's failure to adopt and enforce some rule which would have prevented the accident without any evidence that such rule was customary or expert testimony as to its probable efficiency, and on a new trial such evidence is supplied, an order granting a nonsuit will be reversed. Burr, J., dissented, with opinion.

Appeal by the plaintiff, John Kascsak, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 3d day of July, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.

Franje Moss, for the appellant.

Robert Thorne, for the respondent.

Upon a former trial of this, action the plaintiff had judgment, which was reversed by this court upon the ground that the jury had predicated the negligence of the defendant upon its failure to adopt and enforce some rule the enforcement of which would have prevented the accident to the plaintiff, without having any evidence

Dissent

p. 722

before them of the custom of other railroads under like circumstances, or expert evidence of the probable efficiency of the rules, which, it was claimed by the plaintiff, would have prevented his injury. Upon the second trial the evidence was the same as on the former, except, that the plaintiff gave documentary and expert evi- ■ dence, which was controverted by the defendant, showing that on several other railroads rules and systems of practice similar to those which he contends it was the duty of the defendant to adopt and-enforce, were and had been for some time in general and successful operation, and expert evidence tnat they were reasonable and efficient.

The law of this case may be regarded as established upon, the former appeal ( 115 App. Div. 632 ); and the plaintiff having supplied proof as to the probable efficiency of the rules, a- case was made for the jury. It follows, therefore, that in granting defendant’s motion for a nonsuit the learned trial justice' was in error, and the judgment must be reversed and a new trial granted, costs to abide the event. " .

Hirsci-iberg, P. J., Woodward and Miller, JJ., concurred; Burr, J., read for affirmance.

I dissent. If there was sufficient evidence to go to the jury that by other railroad companies a rule had been adopted that some member of the gang should be charged with the duty of watching for approaching cars and giving adequate warning of the. danger, the failure' tó adopt and enforce such a rule was not the proximate cause of the accident in this case. The very thing which such a rule was intended to accomplish was in fact done. The plaintiff, was warned of the approaching cars in. am pie time to leave the track. He either did not hear or neglected to obey the warning.

Judgment reversed and new trial granted, costs to abide the event.