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Miller v. New York City Railway Co.

99 N.Y.S. 867 Court N.Y. App. Term Decision date 1906-06-28 English

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p. 867
MILLER v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Term.
June 28, 1906.)

Headnote

Carriers—Street. Railway—Personal Injuries—Negligence—Evidence— Sufficiency.
A street car moving slowly struck an unseen piece of horseshoe, which had become tightly wedged in the slot where the plow of the car runs, thereby causing the car to suddenly jerk and stop. The car immediately preceding had proceeded; safely over the rails. Beld to show that the accident was not caused by the negligence of the company.
Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by Annie Miller against the New York City Railway Company. From a judgment in favor of plaintiff, defendant appeals.
Reversed and remanded.
Argued before GILDERSLEEVE, LEVENTRITT, and McCALL, JJ.
William E. Weaver, for appellant.
Gustavus A. Rogers, for respondent.

This judgment should be reversed. The negligence alleged against the defendant is that the car was so carelessly and negligently managed by the defendant that it was derailed. The testimony shows that the car was moving slowly, when it struck an unseen obstruction which caused it suddenly to jerk and stop. Upon examination it was found that a piece of a horseshoe had dropped into the slot, where the plow of the car runs, and was tightly wedged therein. The car immediately ahead of the one to which the accident happened had proceeded safely over the rails, thus showing that the accident was clearly unavoidable and not caused by any negligence of the defendant.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.