Klyachko v. Central Crosstown Railroad — 88 N.Y.S. 1073

Majority

p. 1073

KLYACHKO v. CENTRAL CROSSTOWN R. CO.

(Supreme Court, Appellate Term.

June 23, 1904.)

Headnote

1. Street Railroads—Injury to Pedestrian—Negligence.

Where a fender on the rear of a car fell, and there was no evidence to show it had not been properly strapped up, nor any to show what caused it to fall, nor that the conductor knew of the same, the railway company is not liable to a traveler on the street injured thereby.

Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.

Action by Charles H. Klyachko against the Central Crosstown Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ.

Edward D. O’Brien, for appellant.

Rosin & Eno, for respondent.

The plaintiff’s assignor was not a passenger, and the defendant therefore owed him no extraordinary duty to exercise .diligence. The accident was clearly caused by the fender on the rear of the car. Such an appliance is certainly not dangerous in itself. There was no evidence even tending to show that it had not been properly strapped up. What caused its end to fall down does not appear, nor is there any evidence that the conductor or motorman knew that it had fallen down, or that it had in fact been down for such a length of time before the accident that the conductor should have noticed it. Indeed, the only evidence upon the subject is the other way. Although the defendant’s car undoubtedly did the damage, the defendant is not to be held liable unless it is shown to have been negligent in some way, and the mere fact that the accident happened raises no presumption of negligence. The case is entirely barren of evidence that the defendant or

p. 1074

its servant was guilty of any negligence whatever. Consequently no cause of action was established.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.