Kurzmann v. New York & Rockaway Beach Railroad — 58 N.Y. St. Rep. 584

Majority

p. 584

Lena Kurzmann, Resp’t, v. New York and Rockaway Beach Railroad Company, App’lt.

(Brooklyn City Court, General Term,

Filed January 22, 1894.)

Headnote

Appeal—Insufficient evidence.

A judgment against a railroad company for personal injuries will be reversed where there is no satisfactory evidence that the company was connected in any way with the road or the men in charge of the train.

Appeal from a judgment in favor of the plaintiff.

William C. Beecher, for app’lt; Hurd & Grim, for resp’t.

In the complaint it is alleged that defendant is a corporation, and a common carrier of passengers between1 Flatbush avenue, Brooklyn, and Rockaway Beach, Queens county, and was or is the owner or lessee in possession of the engines, cars, tracks and switches operated ana used by it between said

p. 585

termini, and employer of the conductors, engineers and brakemen employed in and about said engines and cars; and that plaintiff was injured while alighting at Franklin avenue station, Brooklyn, from one of said cars, through the negligence of those in charge thereof. The answer denies every allegation except that defendant is a corporation. From the judgment in favor of plaintiff, this appeal is taken.

A careful perusal of the testimony discloses no satisfactory evidence that defendant was the owner or lessee in possession of the train or the tracks, or employer of those in charge of the train. There is no proof of what, if any, roadbeds or tracks the defendant owns, or where the same begin or end; and it is uncontroverted that this train, at the time of the accident,was on Atlantic avenue, Brooklyn, at Franklin avenue station, on the tracks of the Long Island Railroad Company: There is evidence that the latter company runs trains over the track from Rockaway Beach to this station. Whether or not the train in question was in charge of defendant ought to be capable of easy proof.

Judgment and order must be reversed, and new trial granted, with costs to appellant to abide the event.