Alfred Manahan, by Guardian, Resp’t, v. The Steinway & Hunter’s Point R. R. Co., App’lt.(Supreme Court, General Term, Second Department,Filed February 10, 1890.)Headnote
Negligence—Street railroads.Plaintiff was run over and injured by a street car. He claimed that he was crossing the street without negligence, when the horse stumbled against him, that he grasped the dashboard, but lost his hold, and fell under the car. Defendant claimed that he was a trespasser, and was trying to climb into the car when injured. It appeared that the brake was not put on before he was run over. Held, that, with the facts found by the verdict in plaintiff’s favor, the verdict could not be disturbed.
Appeal from judgment in favor of plaintiff for $2,738.45, entered on verdict
Plaintiff, a boy twelve years old, was injured by being run over by one of defendant’s horse cars. He testified that he attempted to cross the street, having looked to see if a car was coming, and saw that he had time to cross; that, when in the middle of the track, the horse stumbled against him, and he grasped the dashboard, but lost his hold and fell under the car. The car was being driven by a passenger, while the driver went back to drive away some boys, and the brake was only half on. Defendant claimed that plaintiff was a trespasser, and was injured while trying to climb over the front dashboard.
Foster & Foster, for app’lt; J. Warren Laivtori, for resp’t.
This is an action for negligence, and involves the usual questions of negligence of the defendant, and contributory negligence of the plaintiff.
The serious dispute upon the latter question was whether the plaintiff was injured while attempting to cross the street in front of the car which injured him, or whether he ran along the side of the car from the rear towards the front, and received his injuries at that time.
These theories were both submitted to the jury under proper instruction, and the finding must have been in favor of the plaintiff, for he received the verdict.
"With the facts found by the verdict in favor of the plaintiff, the verdict cannot be disturbed by an appellate tribunal.
The judgment and order appealed from should be affirmed, with costs.
Pratt, J., concurs.