Devlin v. Atlantic Avenue R. R. — 32 N.Y. St. Rep. 958

Majority

p. 958

William Devlin, App’lt, v. The Atlantic Avenue R. R. Co., Resp’t.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

INegligence — Street railroads.

Plaintiff was riding on an open car in a narrow street, and was injured by being struck by the shafts of a wagon. The wagon was about to turn into this street and stopped, as did also the car. The wagon then started to proceed, and the car also started, when the shafts of the wagon struck on the side near the rear. Held, that the evidence of negligence was sufficient to go to the jury, and that a nonsuit was improperly granted.

Exceptions ordered heard at general term after order dismissing the complaint.

Action for personal injuries alleged to have been caused by defendant’s negligence.

Boswell H. Carpenter {A. H. Dailey, of counsel), for app’lt; Tracy, MacFarland, Ivins, Boardman & Platt, for resp’t.

The evidence in this case was sufficient to go to the jury.

The plaintiff was a passenger on the defendant’s road, and was injured by being struck by the shaft of a wagon, which struck the defendant’s car on the side, and near the rear of the same.

The car was going down Adams street. The wagon which injured plaintiff was turning from Myrtle avenue into Adams street. When the wagon got to the avenue the defendant’s car was at the crossing where Adams street crosses Myrtle avenue. The car was stopped. The wagon had stopped first. The wagon started when the car stopped, and the car started at the same time. A collision was inevitable from the position of the vehicles and the narrowness of Adams street. There was barely room in Adams street for a wagon to pass between the tracks and the curb-stone.

The vehicles were in plain-view of each other, and the collision .seems to have happened because the driver of the car started before the wagon could get into Adams street out of Myrtle avenue. There would have been no collision if the car had stood still for a moment. The danger did not come in fact from the side, but from the front. The fact that the car had almost passed is decisive proof that a very short delay in the car would have permitted the wagon, which was first put in motion, to get by. Breen v. N. Y. C. & H. R. R. Co., 109 N. Y., 297 ; 14 N. Y. State Rep., 835.

The exception should be sustained, and a new trial granted, costs to abide event.

Dykman, J.,