Potter v. New York Central & Hudson River Railroad — 46 N.Y. St. Rep. 895

Majority

p. 895

Nellie Potter, Adm’rx, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

(New York Superior Court, General Term,

Filed July 5, 1892.)

Headnote

Jíeglisence—Proof of—When a question for jury.

While a plaintiff is bound to show affirmatively that the negligence of the defendant was the sole cause of death, it is not necessary to do so by direct and positive evidence of negligence of defendant and freedom from negligence of deceased, but these facts may be shown by circumstances from which the inference may be fairly- and logically drawn. Where the circumstances are such that inferences may be differently made by different minds, the question is one for the jury.

Appeal from judgment in favor of plaintiff, entered on a verdict, and from order denying motion for a new trial.

Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant.

The following is the opinion of the court below:

McAdam, J.—John Potter, a car inspector in the defendan s employ, was inspecting certain of its cars when a train of other cars propelled by two engines suddenly switched backward on the

p. 896

middle track, pushing together the cars between which he was at work, crushing him to death. He had no warning. The court sent the question of negligence to the jury, and they awarded his widow and administratrix $5,000 damages. The defendant insists it was error not to non-suit the plaintiff, and cites Besel v. N. Y. C. & H. R. R. R. Co., 70 N. Y., 171 , to sustain its claim. Whether the defendant performed its duty to its-employee was, on the evidence and the inferences to be drawn from it, a question for the jury. Abel v. D. & H. C. Co., 103 N. Y., 581 ; 4 St. Rep., 269 ; S. C., 128 N. Y., 662 ; 40 St. Rep., 626 . The jury were properly instructed as to the law, and their verdict on the facts is sufficiently supported by the proofs. True, it was incumbent on the plaintiff to show affirmatively that the negligence of the defendant was the sole cause of death. But it was unnecessary to to do this by positive and direct evidence of negligence of the defendant, and of freedom from negligence of the deceased. The proofs may be indirect, and the evidence had by showing circumstances from which the inference is fairly and logically to be drawn that these essential facts existed. When, from the circumstances shown, inferences are to be drawn which are 'not certain and incontrovertible, and may be differently made by different minds, the question is one for the jury. See note to 39 Am. at p. 513; Hays v. Miller, 70 N. Y., 112 ; Powell v. Powell, 71 id., 71; Hart v. H. R. B. Co., 80 id., 622; Ochsenbein v. Shapley, 85 id., 224. The inferences to be drawn from the evidence were sufficient to warrant the jury in finding that, the defendant had not given reasonable protection to its employee while in the performance of his work, and that its breach of duty and negligence resulted in his ■death. The motion for a new trial must be denied. Forty days stay of execution after notice of entry of judgment, and a like time to make a case.

Abram Kling, for resp’t; Frank Loomis, for app’lt.

For the reasons set forth in the opinion of the court below, the judgment and order appealed from are affirmed, with costs.

Freedman, Dugro and G-ildersleeve, JJ., concur.