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Blumenthal v. Brooklyn Union Elevated R.

143 N.Y.S. 811 Court N.Y. App. Div. Decision date 1913-10-31 English

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p. 811
(158 App. Div. 558.)
BLUMENTHAL v. BROOKLYN UNION ELEVATED R. CO. et al.
(Supreme Court, Appellate Division, Second Department.
October 31, 1913.)

Headnote

1. Carriers (§ 306*)—Passengers—Injuries—Companies Liable.
Defendant electric railway companies owned separate railroads which were connected so as to make a through route to R., over which they carried passengers, each company receiving a part of the fare. The L. Company owned that part of the connecting road called the “incline,” and had immediate control of all of it, but the cars were furnished and run by the employés of the B. Company. Held, that the L. Company was responsible for injuries to a passenger from negligently permitted electric disturbances on the car whether they occurred on the part of the connecting track owned in common, the “incline," or on the main tracks of the L. Company. ®-
[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1249-1251; Dec. Dig. § 306.[2] ]
p. 812
2. Carriers (§ 316*)—Injury to Passenger—Res Ipsa Loquitur Doctrine.
Where the electrical disturbance on an electric railway passenger car . resulting in injury to a passenger was abnormal to the usual use of the-electrical apparatus, the happening of the accident was sufficient evidence of negligence to require a showing of du.e care by the carrier.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 12S3,. 1285-1294; Dec. Dig. § 316.[2] ]
Appeal from Trial Term, Queens County.
Action by Hyman Blumenthal against the Brooklyn Union Elevated' Railroad Company and the Long Island Railroad Company. From a judgment for each defendant, and an order denying a motion for a. new trial, plaintiff appeals. Judgment and order as to the Brooklyn Union Elevated Railroad Company affirmed, and judgment as to the-Long Island Railroad Company reversed, and' new trial granted.
Argued before JENKS, P. J., and BURR, THOMAS, RICH, and STAPLETON, JJ.
Nathan Ottinger, of New York City, for appellant.
D. A. Marsh, of Brooklyn, for respondent Brooklyn Union Elevated' R. Co.
William C. Beecher, of New York City, for respondent Long Island'. R. Co.

Two carriers owned separate railroads which-were connected, so as to make a through route between New York and Rockaway, over which they arranged to carry passengers for a fare-whereof each company should receive a stated part. The Long Island' owned that part of- the connecting railway called the “incline,” and both companies beneficially owned the remainder of it, but as to all of it and the trains using it the Long -Island had immediate control. The plaintiff, a passenger from New York to Rockaway, was injured' proximately by fire resulting from electrical disturbance on the car, which occurred, as plaintiff insists, and in this he finds support in the-evidence, either upon the common track, the incline, or the main tracks-of the Long Island.

[1] In either case the Long Island was a responsible carrier. But the complaint was dismissed as to it when plaintiff rested, and after-further evidence the jury found a verdict in favor of the Brooklyn.

[2] The electrical manifestation was abnormal to the appointed use and was sufficient evidence of negligence to demand a showing of' proper care on the part of the carrier in regard to whatever was a. competent cause of it. The fact that the cars were furnished and manned by the Brooklyn did not entitle the Long Island to dismissal' of the complaint, although it could avail itself of the care observed by the associate company; yet for the purposes of the use of the common track and for its own tracks it, as regards the passengers, adopted the train and the crew and shared the responsibility or alone-bore it, and as the case stood there was a question for the jury. The evidence including the contracts shows that the Long Island was the more influential factor as to the connection and ultimately responsi

p. 813
ble as to its own tracks. In the case against the Brooklyn Company the plaintiff undertook to attribute the fire to a short circuit from the lead wire, from which the insulation had been burned, coming in contact with a part of the car, and the court charged the jury, “You will have to be able to point your finger to the negligence of the defendant”; but the plaintiff’s counsel, although his attention was directed to it, disclaimed a wish to proffer requests or exceptions. While the doctrine of res ipsa loquitur was applicable, the plaintiff did not invoke it, and was contented that the court should not, and the verdict upon the issues submitted was not against the weight of evidence.

The judgment and order as to the Brooklyn Union Elevated Railroad Company should be affirmed, with costs, and the judgment as to the Long Island Railroad Company reversed, and a new trial granted ; costs to abide the event.