Deegan v. Cappel — 25 N.Y. St. Rep. 336

Majority

p. 336

Mary Deegan, Administratrix, etc., App’lt, v. William Cappel, Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Negligence—Contributory—Question eor jury.

Where in an action for damages for personal injuries, it appeared that the plaintiffs intestate attempted to cross a street in the roar of a passing

p. 337

street car, the testimony tended to show that plaintifE was injured by a coach coming along directly behind the car. Held, that the question oí the negligence of the driver of the coach, and the contributory negligence of the deceased was for the jury.

Appeal from a judgment dismissing the plaintiff’s complaint.

James Q. Church, forapp’lt; Man & Prothroe, for resp’t,.

This is an action for the recovery of the damages resulting from the death of William Deegan, alleged to have been caused by the negligence of the driver of a stage coach in the employment of the defendant.

The complaint was dismissed upon the trial at the close of the testimony on the part of the plaintiff, and the case comes to us on appeal from that judgment.

The deceased was crossing Fulton street in the city of Brooklyn, on the cross-walk leading to the city hall. When he started to cross the street there was a street railroad car coming down the track, and there was also a stage coach going the same way in the rear of the car and between it and the sidewalk from which the deceased man" came. The distance between the curb-stone and the rail of the railroad was about twelve feet. The decedent crossed that space until he came within three feet of the track, and waited for the car to pass him, and from the time he was in that position the facts may as well be gathered from the testimony of the two witnesses who were examined upon the trial.

Frederick Huns, a police officer, says: When the car reached the cross town railroad tracks which cross at the corner of the Citizen building in front of the office, the horses of the stage were about at the tail end of the car. As the car got a little further along by the cross-walk which leads to the city hall from the Citizen building, my attention was attracted by something tumbling. * * *

Q. Right after you say you saw something tumbling between the car and the stage, what did you do next ? A. The stage continued on, and after the stage passed up about ten feet, my attention was attracted to somebody lying on the street crosswalk. I then ran over, and two or three gentlemen, with my assistance, picked him up and brought him to the Citizen building.

Cross-examination—Q. The next time you saw the old gentleman, was when he lay upon the ground? A. Well, previous to that, I saw something tumbling between the car and the wagon; on the moment, I could not distinguish what it was.

, Q. Are you positive that you saw; something between the car and the stage ? A. I don’t mean to say that I saw something between the car and the stage; I saw something tumbling underneath by the wheels of the stage, towards the centre of the car; what it was, I could not make out very well.

p. 338

James Mara, the driver of the car, was also examined, and testified as follows, among other things : He was coming out; he was coming over from the sidewalk; he stood about three feet from the track, and I done this (indicating), and he shook his head; when he started from the sidewalk, I was about half a car length from him.

Q. After he shook his head, no, did you drive on; did you strike him with the front of your car P A. No, sir; I could not strike three feet outside of the track; I have only one rail to go on; I am positive of that.

This testimony showed that the deceased was not struck by the car, and that he was seen tumbling underneath the wheels of the stage, and from these facts the inference was natural that he was knocked down and injured by the wheels of the coach. Such an inference being justifiable, the question of the negligence of the driver, and the contributive negligence of the deceased, were for the jury upon all the facts,and the dismissal of the complaint was erroneous.

The judgment should be reversed and a new trial granted, with costs to the plaintiff, to abide the event.

All concur.