Franklin v. Forty-second Street & Grand Street Ferry Railroad

Majority

p. 944

John Franklin, Resp’t, v. The Forty-second Street and Grand Street Ferry Railroad Company., App’lt.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

Negligence—Stbeet bailboad—Liability oe cabbiebs to fassengbbs.

Where the evidence was that the plaintiff’s injury was caused by a collision occurring between the car in which he was riding and a furniture van; that the defendant’s car was going very fast; that the horses attached to the van had passed over the track when the car ran into the van; that the plaintiff was riding inside the car, with the window open and resting his arm on the sill, but entirely within the line of the car: Held, that there was sufficient evidence to sustain a verdict in favor of the plaintiff.

Appeal from a judgment entered upon a verdict of a jury rendered at the Kings county circuit in favor of the plaintiff, and from an order denying a motion for a new-trial.

Freling TI. Smith, for app’lt; Boswell H. Carpenter, for resp’t.

The plaintiff was injured while riding as a passenger on one of the defendant’s street cars. The accident was caused by a collision between the car in which he was riding and a furniture van. The proof of negligence upon the part of defendant’s driver is sufficient tú uphold the verdict. The defendant’s car was going uptown, and was at the time of the collision crossing Sixth avenue, New York. The furniture van was going down on the Sixth avenue track. The defendant’s car was going very fast. The horses of the van had passed over the track, but the defendant’s car ran into the end of the van. The mere statement of the case is sufficient to support the verdict. There was no crowd of vehicles, no obstruction, at mid-day, and was solely because the driver would not. slacken his speed so as to permit a wagon time to pass over the track. The plaintiff was free from- negligence. He was riding in the car with the window open, with his arm resting on the sill of the same, but entirely within the line of the car.

The jury was instructed that the plaintiff could not recover if any part of the plaintiff’s arm was out of the car window, and that if his “injury was occasioned by the.

p. 945

projection of the plaintiff’s arm” the verdict should be for the defendant.

This is in conformity with Holbrook v. Utica and Schenectady R. R. ( 12 N.Y., 236 ).

Judgment should be affirmed, with costs.

All concur.