Baumann v. Gilmour — 10 N.Y.S. 534

Majority

p. 534

Baumann et al. v. Gilmour.

(Common Pleas of New York City and County, General Term.

June 2, 1890.)

Headnote

Negligence—Evidence.

In an action for injuries to plaintiffs’ team sustained by a collision between it and defendant’s, evidence that defendant’s driver, having drawn out of a railway track to allow the passage of a car, attempted to return immediately thereafter, though the space was then occupied by plaintiffs’ light wagon, and that in making the attempt defendant’s heavy truck came in collision with it, is sufficient to sustain a finding that defendant was negligent.

Appeal from fourth district court.

Action by Leo Baumann and another against John G. Gilmour for inj uries to plaintiffs’ horse and wagon in a collision with defendant’s team. There was a judgment in plaintiff’s favor, and defendant appeals.

Argued before Larremore, G. J., and Allen and Bookstaver, JJ.

Gruber, Bard & Landon, for appellant. Geo. Hahn, for respondents.

The action was brought to recover damages for injuries received by pláintiffs’ horse and wagon, caused, as it is claimed, by the negligence of defendant’s servants. Appellant contends that no negligence on the part of the defendant or his servants was shown, and that negligence in such a case will not be inferred from the mere happeiiing of an accident. The latter proposition is true, but the record in this case shows such a state of facts as warranted the trial judge in finding that the collision occurred through the negligence of defendant’s servants in the absence of any explanation of them; and when this explanation was attempted it showed that the defendant’s servants, having drawn out of the railway track to allow a car to pass, immediately afterwards attempted to return to the track right after the car, as he claims he had a right to do, although the space was then occupied by plaintiffs' light wagon, and in making this attempt defendant’s heavy truck came in collision with it. We think there was sufficient evidence to warrant the justice in giving the judgment he did, and that it should be affirmed.