Somerville v. City Railroad — 43 N.Y. St. Rep. 425

Majority

p. 425

Edwin Somerville, Resp’t, v. The City Railroad of Poughkeepsie, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Negligence—Street railroad—Snow.

Defendant, by means of a snow plow, threw the snow from its tracks in a narrow street, and a ridge was thereby formed. Plaintiff, in attempting to pass another team while driving on said street, was crowded on the ridge, his sleigh slipped thereon and upset and he was injured. Feld, that the act of defendant was extremely careless and that a verdict in favor of plaintiff would not be disturbed.

Appeal from judgment of county court in favor of defendant, entered on verdict, and from order denying motion to set aside the verdict and for a new trial. ■

Silas Wodel (Henry M. Taylor, of counsel), for app’lt; J. Morschauser (0. Morschauser, of counsel), for resp’t.

The action is one in which the plaintiff seeks to recover for injuries sustained in consequence of the negligent act of the defendant. Was neglect upon defendant’s part proven ? The defendant operates a street railroad, a portion of .which is on Main street The defendant, after a snow storm, by means of a snow plow threw the snow from within its tracks upon that portion of the street outside the tracks. This caused a ridge of snow outside'the rails of some two and one-half feet higher than the center of the defendant’s track.

The use of the street outside of the railroad tracks packs down the snow so that there is a hard slippery ridge of snow higher than the street and higher than the railroad. The plaintiff driving along the street was, by the slipping of his sleigh on this ridge, upset and injured.

The act of the railroad company was extremely careless and the street was thereby rendered dangerous to those traveling upon if. The street is not wide enough for two teams to safely pass on each side of the- defendant’s road. One is necessarily crowded upon this ridge and the result which happened to plaintiff is likely to happen to others similarly placed in the street Was the plaintiff guilty of neglect which contributed to the injury ?

The bare statement of the case absolves him from an inference of legal neglect The question then became one for the jury and their finding is in favor of the plaintiff upon this issue. The evidence supports the finding. The driving part of the street was extremely narrow. The plaintiff met a team and turned out so as to let this team pass. This forced him upon the ridge of snow' made by defendant and the accident happened because the plaintiff’s sleigh slipped down the incline and was overturned and the plaintiff injured. The plaintiff was. free from fault if he exercised due care in the management of his team.

p. 426

The question of fact whether or not there was a ridge of snow and ice made by defendant and the extent of the plaintiff’s injury, were the subject of contradictory evidence upon the trial. An appellate court is bound by the finding of the jury unless there be preponderating evidence against the verdict.

No such case is presented and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.