Majority
p. 844Adelia L. Hill, App’lt, v. The Ninth Avenue Railroad Company, Resp’t. (Court of Appeals, Filed April 10, 1888.)
Headnote
Negligence—Street car—-When question eob juey.In an action for damages, for injuries received while riding in one of defendant’s cars, it appeared that the car was being driven with unusual speed and was suddenly struck by the pole or shaft of a truck, which penetrated through the front panels of the car, and with sufficient remaining force to throw plaintiff from her seat and inflict serious bodily injuries. Held, that the facts raised a presumption that the driver was negligent, and that the proof was sufficient to raise a question for the jury-
Appeal from a judgment of the general term of the court of common pleas for the city and county of New York, affirming a judgment rendered at the trial'term, dismissing the plaintiff’s complaint.
Jeroloman & Arrowsmith, for app’lt; John M. Scribner, for resp’t.
We think the plaintiff was improperly non-suited. Her proof showed that while riding in a Ninth ave
p. 845
nue street car, in the city of New York, she observed that it was being driven with unusual speed, which she estimated ¡to be at about double the ordinary rate, and was suddenly struck by the pole or shaft of a truck, which penetrated through the front panels of the car, and with sufficient remaining force tc throw her from her seat and inflict serious bodily injuries. Of course she could see nothing and know nothing of what was transpiring outside, but what occurred was enough to call for an explanation, and in its absence to warrant an inference that the driver of the car was in some manner negligent. The speed with which he was going, taken in connection with the circumstances of the accident, indicates that with proper care the injury might have been avoided, and at all events renders it impossible to say, as matter of law, that there was no evidence of negligence on the part of the car driver. The collision may have been wholly due to the careless management of the truck, but it is not a reasonable and natural inference that a passenger in a street car can be thrown from her seat by the shaft of a truck piercing through the front of the car, without some carelessness on the part of the driver; and when it is shown that he was driving at an unusual rate of speed, that becomes inferentially one cause or occasion of the accident, and calls for an explanation. The inference is not unnatural that if the driver had been going at an ordinary and prudent rate of speed, the accident might have been avoided or mitigated, whatever the negligence of the truckman. Enough was proved to raise a question for the jury.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur