139 N.Y. 302, Bailey v. Rome, Watertown & Ogdensburg Railroad Co.

Citation:139 N.Y. 302
Party Name:WILLIAM D. BAILEY, Appellant, v. THE ROME, WATERTOWN & OGDENSBURG RAILROAD COMPANY, Respondent.
Case Date:October 03, 1893
Court:New York Court of Appeals
 
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Page 302

139 N.Y. 302

WILLIAM D. BAILEY, Appellant,

v.

THE ROME, WATERTOWN & OGDENSBURG RAILROAD COMPANY, Respondent.

New York Court of Appeal

October 3, 1893

Argued June 21, 1893.

Page 303

COUNSEL

Oswald P. Backus for appellant. The defendant was negligent in not making a proper inspection at Norwood. ( Kennedy v. Mayor, etc., 73 N.Y. 365; Rehberg v. Mayor, etc., 91 id. 141; Justice v. Lang, 52 id. 323, 328; Hart v. H. R. B. Co., 80 id. 622; Seybolt v. N.Y. L. E. & W. R. R. Co., 95 id. 562; Jones v. N.Y. C. & H. R. R. R. Co., 28 Hun, 366.) The plaintiff offered to prove that he could not have pulled the key or pin out, or have caused it to fall out, by using the brake, if the pin had been in the rod. He also offered to show that the pin could not have worked or fallen out between Norwood and DeKalb, if it had been in in the first place, assuming, of course, that no accident had occurred, and that the brake had not been used. This was refused, and plaintiff excepted. This was error. ( Wheeler v. D. & H. C. Co., 99 N.Y. 616; Murphy v. N.Y. L. E. & W. R. R. Co., 98 id. 635; Moyer v. N.Y. & H. R. R. Co., 98 id. 645; Walsh v. M. I. Co., 32 id. 427; Vosburgh v. L. S. & M. S. R. R. Co., 14 Wkly. Dig. 504; E. T. Co. v. Hope, 5 Otto, 297; Spikerman v. Clark, 9 Hun, 133.) The question, assuming that there was a pin of the kind described, properly secured in the brake rod when the train left Norwood, and that no accident occurred to the train between Norwood and the time Bailey began to use the brake, and that immediately after the accident the brake was examined and found to be all right, with the exception that the pin was gone. What adequate causes were there to account for the absence of the pin? was proper. ( Van Wycklyn v. City of Brooklyn, 29 N.Y. S. R. 794; Lawson on Ex. & Op. Ev. 200.)

Arthur M. Beardsley for respondent. The motion for a nonsuit was properly granted. ( DeGraaf v. N.Y. C. R. R. Co., 76 N.Y. 125; Cornell v. N.Y. C. R. R. Co., 75 id. 332;

Page 304

Wright v. N.Y. C. R. R. Co., 25 id. 566; Chapman v. E. R. Co., 55 id. 586.)Testimony about the coming out or falling out or breaking of a pin is mere guess work as to that which is entirely unknown, and not a matter of science or art, trade or profession. ( Ferguson v. Hubble, 97 N.Y. 507, 512, 513, 514; Hart v. H. R. R. R. Co., 84 id. 56, 60...

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