126 Misc. 180, Audubon Transp. Co. v. Yonkers Railroad Co.

• Citation: 126 Misc. 180, 212 N.Y.S. 684
• Party Name: AUDUBON TRANSPORTATION COMPANY, Respondent, v. YONKERS RAILROAD COMPANY, Appellant.
• Case Date: December 10, 1925
• Court: New York Supreme Court Appelate Division, First Department

Page 180

126 Misc. 180

212 N.Y.S. 684

AUDUBON TRANSPORTATION COMPANY, Respondent,

v.

YONKERS RAILROAD COMPANY, Appellant.

Supreme Court of New York, First Department.

December 10, 1925

Appeal by defendant from a judgment of the Municipal Court, Borough of Manhattan, Fourth District, in favor of the plaintiff, entered upon the verdict of a jury.

There were no exceptions to the charge and the judgment should be affirmed, with twenty-five dollars costs.

COUNSEL

Alfred T. Davison [Frederick W. Frost of counsel], for the appellant.

Klein, Kinsley, Klein & Wille [August P. Klein and Joseph E. Kinsley of counsel], for the respondent.

CHURCHILL, J.

Plaintiff operated automobile buses for the carriage of passengers. It was without lawful authority so to use the public streets. One of its buses was injured in a collision with a street car operated by defendant. It has recovered a judgment upon a verdict in its favor and the question is whether the judgment must be set aside notwithstanding the verdict.

Page 181

Appellant contends, in substance, that since the operation of the buses was unauthorized and unlawful their mere presence on the streets was a trespass and a public nuisance. The contention appears to be that the injury was a direct result of this violation of law and that the case is thus distinguishable from the many cases where violations of statutory duties have been held to be immaterial because unconnected with the happening of the accident.

In the present case it is true, of course, that the accident could not have happened if the bus had not been at the place where it occurred. But it would be going only a step further in the same direction to suggest that the bus could not have been injured if it had not first been constructed. Each of these conditions was a sine qua non of the injury which plaintiff has sustained. But neither was a producing cause of that injury. The [212 N.Y.S. 685] mere presence of the bus on the street did not cause the accident. It was no part of any chain of causation. The cause of the accident was the negligence of the operator of the car, or the operator of the bus, or of both. (Trapp v. McClellan, 68 A.D. 362; Martin v. Herzog, 228 N.Y. 164, 170; Platz v. City of Cohoes, 89 id. 219.) The jury...