Swigelsky v. Interurban Street Railway Co. — 91 N.Y.S. 350

Majority

p. 350

SWIGELSKY v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term.

December 23, 1904.)

Headnote

1. Carriers—Injuries to Passengers—Presumption op Negligence—Rebuttal.

The presumption of negligence which arises against a street railroad from an injury to a passenger, caused by a car’s running off the track, is rebutted by evidence showing that stones were thrown at the car, and got under it and threw it off the track.

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

- Action by Solomon Swlgelsky against the Interurban Street Railway Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Argued before FREEDMAN, P. J., and GILDERSEEEVE and MacEEAN, JJ.

Rudolph Marks, for appellant.

Henry W< Goddard and William E. WeavCr, for respondent.

The plaintiff. testified that he was riding west on the front platform of a Delancey street car, which was so crowded that he could not get inside; that he paid his fare; and that between Eudlow and Orchard streets—the street was being dug up, and there was a pile óf sand on the outside, and stones— the car ran off the track, and he fell off and sustained injury. His brother testified that there were piles of dirt and stones there, and he supposed the car struck the stones, but he did not see the stones on the track. The driver of the car testified that some boys threw paving stones at the car, and they ran down under the car on the rails and threw the car off the track, and that when he pulled the car back he saw paving stones lying there. This was not denied. The presumption of negligence against the defendant was thus . rebutted, and so the judgment must be affirmed.

Judgment affirmed, with costs. All concur.