Rosenblum v. Brooklyn Heights Railroad — 153 A.D. 304

Majority

p. 304

Pauline Rosenblum, an Infant, by Rebecca Rosenblum, Her Guardian ad Litem, Appellant, v. Brooklyn Heights Railroad Company, Respondent, Impleaded with Alexander J. McCollum and the City of New York, Defendants.

Second Department,

November 1, 1912.

Headnote

Negligence — injury to passenger by falling glass from collision of car with truck—failure to show negligence.

The plaintiff, a passenger on defendant’s car, was injured by falling glass from broken windows, cs used by a collision between the car and a truck carrying coal. The evidence showed that the car had partly passed the truck, with from eighteen inches to two feet clearance, when the rear wheels of the truck slipped and crashed into the cari The car was stopped in time to save the last window.

Meld, that there was no evidence of negligence on the part of the defendant.

Appeal by the plaintiff, Pauline Rosenblum, an infant, etc., from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 13th day of September, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s .case on a trial at the Kings County Trial Term as dismisses the complaint against the defendant Brooklyn Heights Railroad Company.

Leon N. Futter, for the appellant.

D. A. Marsh [George D. Yeomans with him on the brief], for the respondent.

This action, for personal injuries, was originally brought against the Brooklyn Heights Railroad Company, A. J. McCollum and the city of New York. Upon the trial the complaint was first dismissed as against the city of-New York and subsequently against the Brooklyn Heights Railroad Company, going to the jury upon the cause of action alleged against A. J. McCollum. A verdict against the last-named defendant has been reversed (Rosenblum v. McCollum, 151 App. Div. 404 ), and the plaintiff now appeals from the judgment dismissing the complaint as against the railroad company.

The facts, briefly stated, on which the plaintiff claims the right to go to the jury are as follows: The plaintiff, a girl of nineteen years of age, was a passenger on one of the defendant’s trolley cars. The defendant McCollum owned a large coal truck, which was being driven along Flushing avenue in the borough of Brooklyn. The driver testifies that he was driving as near to the curb as possible, and the evidence is undisputed that there was a clearance of from eighteen inches to two feet between the coal truck and the overhang of the defendant’s trolley car. The coal truck and-the trolley car were traveling in the same direction and the defendant’s motorman drove his car past the rear end of the coal truck and had passed the truck with six of the ten windows of the car when the truck in some unexplained manner came into collision with the car near the seventh, eighth and ninth windows, breaking, the glass in these, and the car was stopped in time to save the tenth window. The plaintiff sustained her injuries through the falling of the glass.

There is some evidence that there was a slope from the curb toward the trolley car tracks, but this does not appear to have been such as to attract any attention, though it is assumed that the rear wheels of the truck slipped and thus came into collision with the car as above described. But where is the evidence of negligence on the part of the defendant the Brooklyn Heights Railroad Company! The rule of res ipsa loquitur applies only where the facts and circumstances speak for themselves and unexplained point to negligence. Here the plain

p. 306

tiff’s own evidence shows the facts — makes the explanation — and the explanation does not establish negligence on the part of the defendant. To hold that a clearance of not less than eighteen inches was not sufficient for the passage of a trolley car in the streets of the great city of New York and its principal boroughs, would be to practically stop , all traffic, and the law is not thus, impracticable. This case is well within the rule of Freeland v. Brooklyn Heights Railroad Company ( 109 App. Div. 651 ), and the judgment ought not to he disturbed.

The judgment appealed from should be affirmed, with costs.

Present—Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

Judgment unanimously affirmed, with costs.

Cases cited

Freeland v. Brooklyn Heights Railroad 109 App. Div. 651 N.Y. App. Div. 1905-12-08 p. 306