Fleckenstein v. Dock

• Citation: 11 N.E. 951,105 N.Y. 655
• Court: New York Court of Appeals
• Decision Date: 19 April 1887
• Parties: FLECKENSTEIN v. DRY DOCK, E. B. & B. R. CO.

105 N.Y. 655

11 N.E. 951

FLECKENSTEIN

v.DRY DOCK, E. B. & B. R. CO.¹

Court of Appeals of New York.

April 19, 1887.

Appeal from a judgment of the general term of the supreme court, Second department, affirming a judgment entered on a verdict in plaintiff's favor.

Action to recover damages for personal injuries.

At the time of receiving the injuries complained of, plaintiff was the driver of a large two-horse brewery wagon, and in the forenoon of June 18, 1883, halted his team on the easterly side of Lewis street, New York city. As his horses were headed northerly,-that is uptown,-he was on the proper side of the street, (the right-hand side,) and his team and wagon were close into the curb. Lewis street is very narrow, and is only 25 feet wide between the curbs. After driving close up to the curb, plaintiff dismounted, and proceeded to carry three kegs of beer into the cellar of the premises in front of which he had stopped. While he was taking down the last keg, some employes of the street cleaning department, for the purpose of cleaning the gutter in which this team and wagon stood, led the horses for ward and outward, so that the horses stood ‘clear over to the railroad track,’ and left them there. When plaintiff emerged from the cellar-way, he saw this change, and at the same time saw one of defendant's cars about half a block distant coming towards his team quite rapidly. He sprang to his horses' heads to back the team and wagon off the track; but, before he could succeed in his purpose, the car was driven against him, knocking him down and injuring him.

Edmund Randolph, for defendant and appellant.

Stephen B. Jacobs, for plaintiff.

EARL, J.

The evidence of the plaintiff tended to show that, while he was engaged in trying to remove his team and wagon from the track of defendant's road, one of its drivers carelessly drove one of its cars against him, and caused the injury of which he complains. This evidence was controverted on the part of the defendant, and hence there was a question of fact for the jury, and their decision thereon is not reviewable here.

The trial judge did not err in charging the jury that the defendant did not have the exclusive right to the use of its tracks, but simply the paramount right. Street railways have the lawful right to put their tracks in streets, and run their cars thereon. Their cars are confined to the tracks, and cannot turn out to avoid obstacles thereon. Hence they have the right of way, and...