Jennings v. Brooklyn Heights Railroad — 106 N.Y.S. 279

Majority

p. 279

(121 App. Div. 587.)

JENNINGS v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department.

October 23, 1907.)

Headnote

1. Evidence—Presumptions.

The allegation that defendant had an electric railroad through a certain street for the carriage of passengers having been admitted, it will be presumed that a car running on such track, which injured plaintiff, belonged to defendant.

p. 280

2. Same—Exclusive Possession.

Where defendant admitted that it had an electric railroad on a certain street, it will be presumed that Its exclusive use of the tracks on such street continued.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 87.]

Appeal from Municipal Court, Borough of Brooklyn, First District.

Action by Thomas Jennings against the Brooklyn Heights Railroad Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Reversed.

Argued before HIRSCHBERG, P. J., and HOOKER, GAYNOR, RICH, and MILLER, JJ.

Alfred L. Marilley, for appellant

H. F. Ives, for respondent.

The allegation of the complaint that the defendant had an electric railroad through Thirty-Ninth street for the carrying of passengers having been admitted by the answer, the court below could not presume that some other railroad company also ran its cars over the defendant’s tracks. It was therefore not necessary for the plaintiff to show that the car that hurt him was the defendant’s. That fact followed from the fact that the railroad tracks were the defendant’s. If there was evidence of the cars of another company running over the defendant’s tracks, the case might be different; but that fact is not to be presumed. The presumption is to the contrary, i. e., that the defendant’s possession is exclusive, just as much as the presumption is that my possession of my house is exclusive. There is no presumption that I have let a floor or a room to any one. No other company could be running cars over the defendant’s tracks except by its consent. Railroad Law, Laws 1890, p. 1113, c. 565, § 102. Its right and possession must at first have been exclusive, and the presumption is of continuance, not of change. Lawson on Presumptive Evidence, c. 8.

The judgment should be reversed.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide events. All concur.