Connor v. Metropolitan St. Railway Co.

The plaintiff, a driver in the employ of the fire-department of the city of New York, was driving down the west side of Lexington avenue, about 3 o’clock in the afternoon of March 11, 1896. It was snowing, about five inches of snow having then fallen, and the defendant was engaged in cleaning the snow from the east track by means of a sweeper, running north, and operated by the cable. The plaintiff met the sweeper at the corner of Seventy-Second street, and apart a distance of about 8 or 10 feet, when the horse became frightened, ran into a lamppost at the southwest corner of Lexington avenue and Seventy-Second street, throwing the plaintiff out, and inflicting upon him severe injuries. In the complaint it is charged that the horse became frightened and ran away by reason of the negligent, careless, wrongful, and unlawful conduct of the defendant in permitting the sweeper to be used in a dangerous and unsafe condition, causing it to throw snow and dirt against the horse, and by reason of the loud clanging of the bell attached to the sweeper, and other noise made by it, and by reason of its unusual and dangerous, appearance. The learned trial justice refused to submit to the jury any question of negligence arising out of the allegation of noise from the bell or otherwise in the operation of the sweeper, or because of its unusual or dangerous appearance, but did submit to them the question of defendant’s negligence in throwing snow or ice against the horse; charging them, in substance, that there was a disputed question of fact for them to settle as to whether the horse was frightened because of something thrown against him, or was frightened at the scraper itself. They were told that in the latter case there could be no recovery, but in the former case, to quote the language of the charge—

“If they did this thing, they were doing something they had no right to-do, and it was negligent and wrongful on their part to do it. * * * So that you will pass upon this question, and say whether the defendant was guilty of negligence or a wrongful act in throwing a piece of material against this horse, and frightening it, and causing it to run away. If you And that to be so, you may find the defendant guilty of negligence which caused the injury.”

There was no exception to the charge, but a motion was made on defendant’s behalf for the direction of a verdict, which was denied, and an exception taken. The question for review, therefore, is the-sufficiency ■ of the evidence to support the verdict on the theory upon which the case was submitted to the jury.

The plaintiff testified that “stuff” was "flying from the sweeper, and a piece struck the horse around the neck, — a piece that appeared to-

The sweeper was operated under a permit from the municipal authorities, and in obedience to a duty which the defendant owed of clearing its tracks from snow in order that public travel might be unimpeded. This could only be done by running the sweeper with sufficient force and speed to accomplish that purpose. Its object is-to throw the snow, and to throw it far enough to clear the rails. In operating the sweeper the defendant is to be held, of course, to the rule of reasonable care, in view of the dangers to be reasonably anticipated; but a liability based upon so unusual a circumstance as. that of a piece of snow or ice going in an opposite direction from that designed, and without any apparent cause connected with the machinery itself or with its mode of operation, is almost tantamount to-holding the defendant to be an insurer of the safety of others who may be using the street at the same time. There was no evidence-whatever that the sweeper was defective or of a defective or unusual design, no evidence that those in charge of it were careless in any respect, nothing tending in any way to disprove what has been said as to the fact that it always throws material to the right, or tending to prove that by careless management; or the attainment of too great velocity, or in any other manner whatever, it can be made to throw material to the left, when the brooms are arranged for the purpose of clearing the tracks. Assuming that the thing which struck the horse was thrown from the sweeper, and that that alone caused the accident, the jury were permitted to predicate negligence from that one fact, without any evidence that it was the result of negligence,, or that it could have been prevented by the exercise of even the utmost care. In exceptional cases the happening of an accident may be prima facie proof of negligence, but it is not claimed that this is one of that class. The court instructed the jury that “what it was, if

“Thus we see that this court has, in a long line oí decisions, uniformly held that, to justify the submission to the jury of any issue, there must be sufficient proof to sustain the claim of the party upon whom the onus rests, and that mere conjecture, surmise, speculation, bare possibility, or a mere scintilla of evidence is not enough.”

In the absence of proof that the snow or ice which hit the horse, and which the plaintiff said came from the direction of the sweeper, did in fact come from the sweeper, and in the absence of proof that this was the result of negligence, and could have been averted by •care in the speed or in the operations of the sweeper in some other •definite respect, the plaintiff failed to sustain the burden of proof, find the defendant’s motion for the direction of a verdict in its favor should have been granted. .

The judgment and order should be reversed, and a new trial granted, with costs to abide the event. All concur.