195 N.Y. 260, Lamb v. Union Ry. Co. of New York City
|Citation:||195 N.Y. 260|
|Party Name:||SADIE LAMB, as Administratrix of the Estate of MICHAEL LAMB, Respondent, v. UNION RAIIWAY COMPANY OF NEW YORK CITY, Appellant.|
|Case Date:||May 04, 1909|
|Court:||New York Court of Appeals|
Argued April 2, 1909.
Bayard H. Ames, John Montgomery and James L. Quackenbush for appellant. The complaint was properly dismissed, because there was no evidence of freedom from contributory negligence. (4 Wigmore on Ev. § 2510; Will on Cir. Ev. § 280; Gilman v. Deerfield, 81 Mass. 577; Brink v. E. R. R. Co., 47 A.D. 483; Wieland v. D. & H. C. Co., 167 N.Y. 19; Walsh v. F., J. & G. R. Co., 187 N.Y. 563; Perez v. Sandrowitz, 180 N.Y. 397; Pinder v. B. H. Ry. Co., 173 N.Y. 519; Paladino v. S. I. M. Ry.
Co., 127 A.D. 183; Belford v. B. H. R. R. Co., 86 A.D. 388; Geleta v. B. & N. F. Ry. Co., 181 N.Y. 524; Madigan v. T. A. R. R. Co., 68 A.D. 123.)
Sidney A. Syme for respondent. The question of deceased's contributory negligence should have been submitted to the jury as a question of fact. ( Wazenski v. N.Y. C. & H. R. R. R. Co., 180 N.Y. 466; Tolman v. S., B. & N.Y. R. R. Co., 98 N.Y. 198; Fedjowski v. D. & H. C. Co., 12 A.D. 589; Monck v. B. H. R. R. Co., 97 A.D. 147; 182 N.Y. 567; Pruey v. N.Y. C. & H. R. R. R. Co., 41 A.D. 158; Beecher v. L. I. R. R. Co., 35 A.D. 292; 161 N.Y. 222; Loder v. M. S. R. Co., 84 A.D. 591; Lane v. B. H. R. R. Co., 85 A.D. 85; 178 N.Y. 623; Belford v. B. H. R. R. Co., 86 A.D. 388; Stevens v. B. H. R. R. Co., 59 A.D. 23.)
The plaintiff's intestate was run over and killed by one of the defendant's trolley cars on October 20, 1906.This action is brought to recover damages therefor, and the plaintiff alleges that the intestate's death was caused solely by the defendant's negligence. The testimony presented by the plaintiff upon the question of defendant's negligence was sufficient to require that that question be submitted to the jury for their determination. The testimony was not, however, sufficient to present a question of fact as to the injury being willful or to justify a recovery against the defendant unless the intestate was free from contributory negligence. The burden throughout the trial, therefore, was upon the plaintiff to show affirmatively either by direct evidence or the drift of surrounding circumstances that the intestate was free from negligence contributing to his death. ( Tolman v. Syracuse, B. & N.Y. R. R. Co., 98 N.Y. 198; Baxter v. Auburn & Syracuse Electric R. R. Co., 190 N.Y. 439.)
The accident occurred upon Webster avenue which extends from Mount Vernon towards the city of New York. The avenue runs substantially north and south, and the place of the accident was a half mile or more south of the West Mount
Vernon station of the Harlem railroad. The intestate was about fifty-six years old. He supported himself, wife and daughter by working at anything he could find to do. He did not have a trade and prior to his death he had worked at different times in a saloon, bowling alley and at a florist's, and received therefor $1.25 by the day, or $7 by the week. The only history that we have of him or of the...
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