Daub v. Yonkers Railroad — 23 N.Y.S. 268

Majority

p. 268

(69 Hun, 138.)

DAUB v. YONKERS R. CO.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

Injury to Passenger on Street Car—Negligence.

Where employes of defendant street-railway company made excavations between and on the side of the rails, so deep as to weaken the track so that it would not sustain the weight of a car, and defendant’s driver, in disregard of all warning, drove on a trot into the trench, causing injuries to plaintiff, a passenger on the car, such facts were conclusive of defendant’s negligence.

Appeal from city court of Yonkers.

Action by Philip A. Dauf> against the Yonkers Railroad Company to recover for personal injuries sustained through defendant’s alleged negligence. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

John F. Brennan, for appellant.

Ellis & Harrigan, for respondent.

The facts from which the negligence of the defendant ■ could be found were abundantly proven. The employes of the defendant had made an excavation between the rails and outside of them to a depth of six inches; The defendant’s driver, ágainst the warning of those at work upon the trench, drove on a trot into this trench, and the front wheels of the car, in which the plaintiff and other passengers were seated, dropped into the trench, and injured the plaintiff by throwing him to the other side of the car from the side upon which he was sitting at the time of the accident There was no question bjut that the plaintiff was free from- negligence. He was a passenger, seated in the car, reading, and was injured without a moment’s notice of danger. The digging of a trench so deep as to weaken the track so that it would not hold the car, and the disregard of warning by the defendant’s driver that he must stop his car, is such conclusive proof of the defendant’s negligence that an assessment of damages was all that was left for the jury. There was no error in the charge as to the horses running into the open trench. Running or walking was' immaterial,, so long as the,driver threw his car in the excavation; but- when a driver trots in clear daylight into a trench, against

p. 269

warning, a court is justified in telling a jury that, if proven, it is negligence. The judgment and order denying a new trial should be affirmed, with costs. All concur. •