New York Mail Co. v. Joline — 112 N.Y.S. 1067

Majority

p. 1067

NEW YORK MAIL CO. v. JOLINE et al.

(Supreme Court, Appellate Term.

November 24, 1908.)

Headnote

Street Railroads (§ 79*)—Excavations—Injury—Liability.

A street railway company’s liability for injury caused by a team falling into an excavation extending under its track, but not constructed by it, is not shown by its employés’ attempts to prevent the accident by warning the driver and in rescuing an injured horse, where such efforts were not part of the employés’ duty.

[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 79.*]

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by the New York Mail Company against Adrian H. Jo-line and another, receivers of New York City Railway Company. From

♦For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

p. 1068

a judgment for plaintiff, defendants appeal.

Reversed, -and new trial ordered.

Argued before GIEDERSLEEVE, P. J., and MacLEAN and SEA-BURY, JJ.

Hasten & Nichols (Vine H. Smith, of counsel), for appellants.

Alexander & Green, for respondent.

The plaintiff’s team driven southward on the uptown railway tracks fell something after midnight into an excavation in the street, not made by the defendant, although running across under its tracks, but by some one for the “McAdoo Tunnel.” Nothing was proven herein showing any liability of the defendants. Some of its servants present on the scene did unavailingly try to prevent the accident by warning the driver, and others arriving later with a wrecking wagon endeavored without success with their tackle to rescue the horse injured. These efforts to assist the plaintiff’s driver out of his distress were not part of -the duty of the defendant’s servants, and their failure did not bring them into connection with the accident. The judgment must be reversed.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event.