Coulahan v. Metropolitan St. Railway Co. — 51 N.Y.S. 137

Majority

p. 137

COULAHAN v. METROPOLITAN ST. RY. CO.

(28 App. Div. 394.)

(Supreme Court, Appellate Division, First Department.

April 22, 1898.)

Headnote

Injury to Passenger—Dismissal op Action.

In an action to recover damages for injuries received by the plaintiff while a passenger on one of defendant’s street cars, slie testified that the car passed a truck standing beside the track, hut struck the horse attached thereto, which was standing on the track, and that he sprang into the car, and injured lier. No evidence was given on defendant’s part, but the complaint was dismissed. Held, that as the jury might have inferred that the horse was standing upon the track when the driver attempted to pass.'and, if so, would have been justified in inferring negligence on the driver’s part, tlie dismissal was error.

p. 138

Appeal from trial term, New York county.

Action by Honora Coulahan against the Metropolitan Street-Railway ■Company. From a judgment entered on a verdict dismissing the complaint, plaintiff appeals.

Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, ' PATTERSON, and O’BRIEN, JJ.

William J. Leitch, for appellant.

John T. Little, Jr., for respondent.

The action was brought for damages for personal injuries which the plaintiff claims to have received while a passenger ' in a street car upon one of the defendant’s railways. No evidence was given on the part of the defendant, but the complaint was dismissed at the close of the plaintiff’s case. As stated by the plaintiff-, ■she was a passenger in an open car of the defendant, riding along on Fifty-Ninth street easterly. Near the corner of Third avenue and Fifty-Ninth street, a truck, with a horse or horses attached, was standing in the street by the side of the track. The plaintiff was sitting on the same side of the car as that on which the truck and horse stood. She said that the car passed the truck, but struck the horse; whereupon the horse began to jump, and sprang into the car, and sat down on the plaintiff, causing her very serious injuries. Upon1 her ■direct examination, she gave no reason why the car which had passed the truck without difficulty should have struck the horse; but upon her cross-examination, when asked how she explained that apparent ■discrepancy, she stated that the truck was near the track, but the horse stood on the track. This was substantiálly all the evidence as to the way in which the accident occurred. The jury might have inferred from this testimony that the horse was standing upon the track at the time when the driver attempted to pass; and, if that be so, it was probable that the horse would have been struck; and it' would have been proper for them to infer that the attempt of the ■driver of the car to pass the horse standing upon the track was negligence, and for that reason it was error to dismiss the complaint, but the case should have been submitted to the jury.

The judgment, therefore, must be reversed, with costs to the appellant to abide the event. All concur.