127 A.D. 183, Paladino v. Staten Island Midland Ry. Co.

Citation:127 A.D. 183
Party Name:JAMES PALADINO, Respondent, v. STATEN ISLAND MIDLAND RAILWAY COMPANY, Appellant.
Case Date:June 29, 1908
Court:New York Supreme Court Appelate Division, Second Department
 
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Page 183

127 A.D. 183

JAMES PALADINO, Respondent,

v.

STATEN ISLAND MIDLAND RAILWAY COMPANY, Appellant.

Supreme Court of New York, Second Department.

June 29, 1908

APPEAL by the defendant, the Staten Island Midland Railway Company, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, rendered on the 20th day of September, 1907, after a trial without a jury.

COUNSEL

Frank H. Innes, for the appellant.

Arnold J. B. Wedemeyer, for the respondent.

WOODWARD, J.:

The evidence in this case is not sufficient to support the judgment for damages for personal injuries sustained by the plaintiff,

Page 184

for the reason that there is absolutely no evidence of the exercise of any degree of care on the part of the plaintiff. The defendant operates a double-track surface railroad on Montgomery avenue, in the borough of Richmond, and the plaintiff in this action had at one time been employed by the defendant as a conductor upon this line, so that he was thoroughly familiar with the method of operating the cars. At the time of the accident the plaintiff was employed as a driver upon a covered wagon, and his own testimony is to the effect that he was driving his team in one of the defendant's tracks; that at the point where the accident occurred there is quite a steep hill, and that he had been driving in the track from the point where the tracks entered Montgomery avenue; that he first discovered that he was in danger when some one 'hollered' to him; that he looked around and found the car within ten or fifteen feet of him; that he tried to drive out of the track and that before he could get out the car hit the rear wheel of his wagon, the result being the slight injuries of which he complains. It may be gathered from the evidence that the defendant's lines enter Montgomery avenue through a private cut, upon a curve, and that this curve is at the brow of the hill. There is absolutely no evidence that the plaintiff made any effort to ascertain whether a car was coming or not before he entered upon the track; no evidence that during the time that he was driving on the track he took any pains to discover whether he was in danger or not, and the theory of the plaintiff seems to be that because he did not hear the motorman ringing his gong he had a right to occupy the tracks for driving without the exercise of any care...

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