Schnell v. Metropolitan St. Railway Co. — 64 N.Y.S. 67

Majority

p. 67

(50 App. Div. 616.)

SCHNELL v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, Second Department.

April 14, 1900.)

Headnote

Street Railroads—Injuries—Defective Track—Proof.

Where the complaint, in an action against a street-railway company for an injury resulting from the defective condition of a certain part of its track, alleges that such road was operated by the defendant company, and the answer admitted the operation thereof, it was error to dismiss the complaint because the evidence failed to show that defendant was prima facie liable for the defective condition of the track.

Appeal from trial term, Kings county.

Action by Charles Schnell against the Metropolitan Street-Railway Company for injuries. From a judgment of nonsuit and from

■ an order denying plaintiff a new trial, he appeals.

Reversed.

Argued before GOODRICH, P. J., and BARTLETT, HATCH, WOODWARD, and HIRSOHBERG, JJ.

John Vernou Bouvier, Jr., for appellant.

Charles F. Brown (Henry A. Robinson, on the brief), for respondent.

The complaint was dismissed because the proof failed to show, in the opinion of the learned trial justice, that the defendant was liable prima facie for the defective condition of the track. The proof did show that on Avenue A, between East Nineteenth and East Twentieth streets, there was a single line of double tracks, and that a rail in the down track had been loose, and in a dangerous condition, for at least a week before the accident. There was no proof that any other company than the defendant operated a street-railway line on the block in question. The complaint alleged that the defendant was engaged in .the operation of various lines of street railway in the city of New York, one of which lines runs through Avenue A, between East Nineteenth and East Twentieth streets; that it was its duty to keep the rails and tracks of its said railway lines in good order and repair; that the rail in question, owing to defendant’s negligence, was loose on the day in question; and that the plaintiff was injured while lawfully driving a wagon on said Avenue A, between East Nineteenth and East Twentieth streets, upon and across the railway track owned and maintained by defendant. The answer expressly admitted that the defendant did operate the street-railway line on Avenue A, between East Nineteenth and East Twentieth streets, but denied that the tracks were in a dangerous condition. The answer contained no other denial material to the point under consideration. We thinfr the ownership of the tracks by the defendant, under the allegations of the complaint and in the absence of a denial, must be regarded as admitted, and that it was therefore error to dismiss the complaint. Judgment and order reversed, and new trial granted.

Judgment and order reversed, and new trial granted, costs to abide the event