Atkinson v. Oelsner — 32 N.Y. St. Rep. 1088

Majority

p. 1088

William D. Atkinson, Resp’t, v. Rudolph Oelsner, App’lt.

(Supreme Court, General Term, First Department

Filed July 18, 1890.)

Headnote

1. Master and Servant — Negligence.

Proof that plaintiff while crossing a street was knocked down hy a horse driven by defendant’s servant, who was riding in an open wagon, and that the latter could not he stopped by the officer who pursued him, until he gone over 100 feet frdm the place of the accident, is sufficient, in the absence of explanation, to justify the inference of negligence.

a. Same — Evidence.

A refusal to strike out plaintiff’s testimony of statements to him hy a doctor as to the extent of his injuries is harmless error, where there is competent medical testimony in the case to the same effect.

Appeal from judgment entered upon a verdict at circuit and from order denying defendant’s motion for a new trial.

AsTibél P. Fitch, for app’lt; Sermon S. Shook, for resp’t.

This case has been submitted without oral argument. The only point0urged in behalf of the appellant is that a verdict should have been directed in his favor on the ground that there was no evidence that his servant had been negligent in driving the wagon by which the plaintiff was injured. The proof as to the circumstances of the accident was quite meagre, but I think it was sufficient, in the absence of any explanation on the part of the defendant, to warrant the inference of negligence. On the afternoon of September 23, 1886, while the plaintiff was crossing Forsyth street" at the intersection of Delancey street, in the -city of New York, he was knocked down by a beer wagon, or by the horse drawing the same, which was driven by one Charles Rint, an employee of the defendant.

p. 1089

The plaintiff himself was rendered, unconscious, or nearly unconscious, by the injuries which he received, and was not able to give any account of how the accident happened; but he did testify to facts indicating that it was not attributable to any fault on his own part He was on the right hand side, the north side, of Delancey street, going toward Broadway, and was carrying a parcel of umbrella sticks on his left shoulder. When he got to Forsyth street he raised the bundle and looked one way to see if anything was coming, and then looked the other to see if anything was coming from that direction. He did not see anything coming, and .walked across beyond the car track, after which he has no memory of what occurred until he regained consciousness subsequently to the accident.

In the brief for the appellant it is stated that none of the witnesses saw the plaintiff struck by either horse or wagon. I do not so read the evidence. The witness Carpenter testified to seeing the plaintiff first on the curb, with the bundle of canes on his .■shoulder, and then said: “ The next I saw of him was in the center of the street, knocked down by a beer wagon or by a horse. '* * * I did not see the wagon coming up Forsyth street until it struck him. He was knocked down there by the shaft or by the horse.”

It is true, the witness could not tell whether the horse or the shaft struck the person of the plaintiff, but his inability to speak with precision on this point is of no consequence. He is positive that the plaintiff was thrown down by the vehicle or by the animal that drew it, and that is enough.

The other eye-witness of the accident was the police officer, ¡Rooney. He saw Mr. Atkinson fall, and thought it was the horse or shaft that struck him, but could not see or say just where it struck him.

The testimony of this policeman indicated that the wagon was being driven at such a rate of speed and with such a careless outlook on the part of the driver as to charge him with negligence. He says: “I saw the man fall, and the driver was driving at a pretty nice gait, and I ran after him holloaing to him to stop, and I suppose I went about 125 feet before he did stop.” The plaintiff’s testimony shows that there was nothing to obstruct the view, and the fact that the driver went on such a distance after knocking down the plaintiff tends to prove that he was so unobservant as not to know what he had done, or was going so fast that he had difficulty in checking his horse, and it seems not improbable that both these elements of negligence entered into his conduct on this occasion. The witness Carpenter agrees with the officer as to the speed of the beer wagon, saying: “I know he was going pretty ■well, because after the man was knocked down the officer did not get him (the driver) until probably 100 feet or more beyond where the accident happened.”

The driver was not called to explain how he came to run over or run down the plaintiff. The defendant, himself, however, confirmed the evidence of the plaintiff’s witnesses, to the effect that

p. 1090

the wagon was an open one, so that its construction offered no obstacle to the driver’s view of persons upon the cross-walk. Taking all the proof together, it showed not merely the occurrence of an accident, but that it occurred under circumstances from which negligence on the part of the defendant’s agent might legitimately be inferred; and the trial court was therefore right in giving the case to the jury.

There is an exception in the record to the refusal of the court to strike out the plaintiff’s testimony as to a conversation with the doctor at the hospital, in which the doctor told him he had a lot of ribs broken. So far as this statement was concerned, the motion ought to have been granted, but the error in denying it was harmless, as there was other competent medical testimony in the-case, wholly uncontradicted, to the effect that the plaintiff had sustained a fracture of the ribs.

■The judgment under review ought to be affirmed.

Van Brunt, P. J., and Barrett, J., concur.