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Levine v. Brooklyn, Queens County & Suburban Railroad

119 N.Y.S. 315 Court N.Y. App. Div. Decision date 1909-11-19 English

Delivered by BURR, J.

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p. 315
LEVINE v. BROOKLYN, Q. C. & S. R. CO.
(Supreme Court, Appellate Division, Second Department.
November 19, 1909.)

Headnote

1. Negligence (§ 121*)—“Res Ipsa Loquitub.”
While the doctrine of “res ipsa loquitur” does not permit a recovery without some proof of negligence, yet, if proof of the occurrence shows that the accident could not have happened without negligence according to the ordinary experience of mankind, the doctrine is applicable, though the precise omission or act of negligence is not specified..
[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 218; Dec. Dig. § 121*
For other definitions, see Words and Phrases, vol. 7, pp. 6136-6139; vol. 8, p. 7787.]
♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
p. 316
2. Negligence (§ 121*)—Burden of Proof.
While the burden of proof is on plaintiff to establish negligence, ir there is no evidence to rebut the presumption raised by. the application of the doctrine of “res ipsa loquitur,” plaintiff has successfully borne the-burden.
[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 218, 224, 225 Dec. Dig. § 121.*]
8.' Carriers (§ 316*)—Street. Railroads—Injuries to Passengers—Negligence.
Evidence that the car on which plaintiff was riding ran into a car belonging to another company operating on another street at a crossing,, and that plaintiff was injured in the collision, was sufficient to raise a presumption of negligence on the part of the operators of the colliding; car, under the doctrine of “res ipsa loquitur.”
[Ed. Note.—For other cases, see Carriers, Cent. Dig. § Í283; Dec. Dig.. § 316.*]
4. Damages (§ 9*)—Injuries to Passengers—Nominal Damages.
Where a street car passenger was thrown to the floor in a collision, the-cause of which was not shown, and there was ho suggestion that plaintiff was negligent, he was at least entitled to recover nominal damages,, regardless of the extent of his injuries.
[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 7-15; Dec. Dig. $ 9.*]
•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, .& Rep’r Indexes
Appeal from Municipal Court, Borough of Brooklyn, First District, Action by Abraham Levine against the Brooklyn, Queens County & Suburban Railroad Company. From a judgment for defendant, plaintiff appeals.
Reversed, and new trial ordered.
Argued before WOODWARD, JENKS, BURR, RICH, and MILLER. JJ. •
Donald F. Ayres, for appellant.
Francis R. Stoddard, Jr., for respondent.

On the 38th day of September, 1908, the defendant-operated a street railway running through avenue, the borough of Brooklyn, known as the “Reid Avenue line.” The-plaintiff was a passenger on one of the cars of that line, and when running through Church avenue, near its intersection with Flatbush avenue, the car. belonging to the defendant company ran into another car operated by the Nassau Electric Railway Company. This action was-brought to recover for the injuries which plaintiff claims to have, then, sustained.

The fact that plaintiff was a passenger, and that the collision occurred, in the manner stated, was testified to both by him and another passenger on the car. The defendant introduced no testimony, but nevertheless judgment was rendered for the defendant. This, ■ we think, was error. The doctrine of res ipsa loquitur “does not permit a recovery without some proof of negligence, but it regulates the degree of proof required under certain circumstances. If proof of the occurrence shows that the accident was such as could not have happened without negligence according to the ordinary experience of mankind, the doctrine is applied, even if the precise omission or act of, negligence is not specified.” Robinson v. Consolidated Gas Co., 194

p. 317
N. Y. 37, 86 N. E. 805 . When the front of a car operated by the company upon which plaintiff was a passenger ran into a car owned and ■operated by another company, a presumption of negligence on the part ■ of the carrying company arises, which calls upon it for an explanation. Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380 , 56 N. E. 988 . Quite a different question might be presented if a car owned by another company had struck the rear of this car. Elliott v. Brooklyn Heights R. R. Co., 127 App. Div. 300 , 111 N. Y. Supp. 358 . While the burden of proof always remains upon the plaintiff to establish negligence, if there is no evidence to rebut the presumption which has arisen, the plaintiff has successfully borne his burden, and if there is proof of freedom from contributory negligence he is entitled to recover. Loudoun v. Eighth Ave. R. R. Co., supra.

There was no suggestion of contributory negligence on the part of the plaintiff in this action, and therefore he'was entitled to judgment at least for nominal damages. The plaintiff testified as to his injuries, and was corroborated to some extent by the physician who attended him, and by his daughter and two other witnesses. The defendant apparently thought that his injury was of sufficient importance to make inquiries with regard to it; for, shortly after the accident, they sent an investigator, and also a physician in the employ of the company, to ■examine as to the extent thereof. It is quite likely that the plaintiff may have exaggerated the extent of his injuries, and that possibly may have operated upon the mind of the learned trial judge to his prejudice.

On the evidence, however, he was entitled to recover something by way of damages, and the judgment in favor of the defendant should be reversed, and a new trial ordered; costs to abide the event. All concur.

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