Majority
p. 822Lena Kunzmann, App’lt, v. New York and Rockaway Beach Railroad Company, Resp’t. (Brooklyn City Court, General Term, Filed May 28, 1894.)
Headnote
Negligence—Question of fact.The evidence, in an action for personal injuries to plaintiff while a passenger on a train, was held sufficient to require the submission of the case to the jury.
Appeal from a judgment in favor of the defendant.
Hurd & Grim, for app’lt; W. 0. Beecher, for resp’t.
We have carefully read the record on the present appeal, and conclude that the testimony was sufficient to require the submission of the case to the jury. The plaintiff
p. 823
proved that the defendant is a common carrier of passengers between Flatbush avenue station in Brooklyn and Rockaway Beach; that the defendant issued to plaintiff an excursion ticket from Bedford station to Rockaway Beach, and that on her return to Bedford station she was injured by reason of negligence of the employees upon the train; that the cars of the train by which she returned had upon them the name of the New York & Rockaway Beach Railroad. The proof seems to bring the case within the authority of Wylde v. Northern Railroad Company, 53 N. Y. 156 . This case was reversed on the former appeal, 58 St. Rep. 584 ; 27 N. Y. Supp. 132 , on the ground that there was no proof that the defendant ran, or had the right to run, on Atlantic avenue, and that there was no proof that the train on which the plaintiff was injured was in charge of the employees of the defendant. This proof has now been supplied, and. the plaintiff made out a prima facie case. Judgment reversed, and new trial granted, with costs to appellant to abide the event.
Cases cited
- Wylde v. Northern Railroad Co. of New Jersey 53 N. Y. 156 p. 823