Murphy v. Interurban Street Railway Co. — 93 N.Y.S. 728

Majority

p. 728

MURPHY v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Division, Second Department.

May 12, 1905.)

Headnote

Carriers—Negligence—Injury to Passenger—Evidence—Sufficiency.

In an action against a carrier for injuries to a passenger, owing to the jolting of the car, held, that the question of defendant’s negligence was one for the jury.

Appeal from Trial Term, Kings County.

Action by Margaret A. Murphy against the Interurban Street Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Argued before BARTLETT, WOODWARD, RICH, and MILLER, JJ.

Henry Escher, Jr. (George F. Elliott, on the brief), for appellant.

Bayard H. Ames (F. Angelo Gaynor, on the brief), for respondent.

The plaintiff appeals from a judgment entered upon a nonsuit. The jury could have found from the evidence that the horse car in which the plaintiff was a passenger was derailed by the defendant’s servants for the purpose of getting around a truck which blocked the track; that no warning or opportunity to leave the car was given the passengers; that the jolting of the car, caused by its running into a rut or hitting some obstruction, threw the plaintiff forward, then backward, so that her head struck the side of the car with sufficient force to cause the injuries for which she sues. We think that the evidence which would have justified these conclusions required the submission of the case to the jury, and that the dismissal of the complaint was error which requires a reversal of the judgment.

Judgment reversed and new trial granted; costs to abide the event. All concur.