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 circumstances affecting the occurrence so far as he is concerned is given by his daughter, a young lady about twenty-one years of age. From her testimony it appears that he came home from his work on the day of the accident and about two o'clock of that day left with her for New York by trolley 'To do some shopping, to buy something to eat.' They returned by trolley to the Harlem railroad station. She says it was about or near eight o'clock in the evening, but subsequently testified 'it may have been 7:20, and it may have been a little later.' The daughter gave him some parcels that she had and left him standing on a corner and went across the street by the railroad station, a distance of about thirty or forty feet, to get a carriage that was standing there to take them home, and returned immediately and found that her father had gone. She testifies: 'We lived about a mile from the station to the north. I know this place where my father was killed is south of the station about half a mile or more. My father didn't have to go down that road to go home; that was in the opposite direction from the road he would take ordinarily to get to our house. I do not know why he went down there; I don't know any reason for it at all. When I left him he was going home with me to take the bundles home that we had purchased. I just went as far as the station to look for a carriage and there was only one carriage there, right at the Harlem station. I did not get in the carriage and come back; I walked back. This isn't more than thirty or forty feet that I had to go to find this carriage; about that distance. While I walked this forty feet I did not speak to the carriage driver. I told him to go to the corner. Then I walked right straight back to the corner again and my father had disappeared.'
In her efforts to find her father she went into the near-by stores and shops and to the places where he had been employed, but so far as appears, he was never thereafter seen by any one until after the accident.
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