Lynch v. United Traction Co. — 130 N.Y.S. 230

Majority

p. 230

LYNCH v. UNITED TRACTION CO.

(Supreme Court, Appellate Division, Third Department.

June 28, 1911.)

Headnote

Street Railroads (§ 117^[1] )—Personal Injuries—Question for Jury.

In an action for personal injuries, caused by" a collision between defendant’s street railroad car and a vehicle in which plaintiff was riding, held, that it was error to dismiss the complaint on the ground that the evidence was not sufficient to justify a finding that defendant was negligent.

[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 117.^[1] ]

Appfeal from Trial Term, Albany County.

Action by Lillian Lynch, a minor, by Mary Lynch, her guardian ad litem, against the United Traction Company. From a judgment dismissing the plaintiff’s case, plaintiff appeals.

Reversed, and new trial granted.

Argued before SMITH, P. J., and KELLOGG, HOUGHTON, and SEWEIX, JJ.

John W. Roddy, for appellant.

Patrick C. Dugan, for respondent.

The, plaintiff, a girl 19 years of age, was injured in a collision between one of the defendant’s cars and a milk wagon,

p. 231

in which she was riding, about 5 o’clock in the afternoon of the 7th day of May, 1910.

The evidence given on the trial tended to show that a short time before the accident the plaintiff and two other girls were walking along Broadway in the city of Albany, when they saw a milk wagon, drawn by one horse, going in a southerly direction on the south-bound track of the defendant’s street surface railroad. They asked the driver for a ride. He stopped, and the plaintiff and her companions climbed into the seat. They then proceeded southerly upon the track until they were overtaken by a south-bound car. The motorman sounded his gong as a signal to the driver to get off the track and let the car go by. A truck going in the same direction on the westerly side of the track prevented the driver of the milk wagon from turning to the right. He therefore turned to the left, and was attempting to cross the north-bound track, into the roadway beyond, when the rear end of the wagon was struck by one of the defendant’s cars coming from the south, and the plaintiff was thrown out and injured. It also appeared that for more than 400 feet north from the point of collision the tracks were practically straight, that the motorman had an unobstructed view of the track during the whole of this distance, and there was evidence from which it might be fairly inferred that he made no effort to stop the car or to avoid the accident. The plaintiff testified that the car was going very fast when it was 250 feet away, that “it was going at the same rate of speed 10 feet away from me,” and that it was not stopped until it had gone 10 or 12 feet beyond. I think that these facts were sufficient to justify a finding that the defendant’s motorman was negligent in the management of his car.

It follows that the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.