Lamb v. Union Ry. Co. of New York City

• Decision Date: 04 May 1909
• Citation: 88 N.E. 371,195 N.Y. 260
• Parties: LAMB v. UNION RY. CO. OF NEW YORK CITY.
• Court: New York Court of Appeals Court of Appeals

195 N.Y. 260

88 N.E. 371

LAMB

v.UNION RY. CO. OF NEW YORK CITY.

Court of Appeals of New York.

May 4, 1909.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Sadie Lamb, administratrix of Michael Lamb, deceased, against the Union Railway Company of New York City. From a judgment of the Appellate Davision (125 App. Div. 286,109 N. Y. Supp. 97) reversing a judgment of the Trial Term dismissing the complaint, defendant appeals. Judgment of the Appellate Division reversed, and judgment of the Trial Term affirmed.

Bayard H. Ames, for appellant.

Sidney A. Syme, for respondent.

CHASE, J.

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, 50 Am. Rep. 649;Baxter v. Auburn & Syracuse Electric R. R. Co., 190 N. Y. 439, 83 N. E. 469.

The accident occurred upon Webster avenue, which extends from Mt. 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 Mt. Vernon station of the Harlem Railroad. The intestate was about 56 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 21 years of age. From her testimony it appears that he came home from his work on the day of the accident and about 2 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 8 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 30 or 40 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 30 or 40 feet that I had to go to find this carriage, about that distance. While I walked this 40 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 nearby 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.

Substantially the only testimony relating to the accident is given by two young men, a driver of a delivery wagon and his helper. They had been making deliveries in Mt. Vernon, and the driver testified that at half past 8 he was at the Harlem Railroad station, and the car started from there southerly at the same time that he started with his wagon. The wagon was in advance of the car and continued on the tracks in advance of the car going southerly at a speed of about five to eight miles per hour. As the avenue runs southerly from the Harlem Railroad station, there is a double curve in it. When the wagon was at the first of the curves, the driver turned off the track, and the car passed so close to it as to rub against one of the wheels. As it passed the motorman leaned from the side of the car over the gate and said something which the witness did not understand. The driver further testified: ‘I did see something * * * down the road. We were looking down. I didn't pay much attention to the motorman, and I see a dark object on the track. I couldn't distinguish whether it was a man or a woman, but I could see under the are light-I could see somebody on the track. The Court: He said he saw an object on the track.’ He followed the car with the wagon, and when about 300 feet south of the southerly curve in the avenue the car stopped, and the body of the intestate was found behind the car badly mangled. The testimony of the helper who was riding with the driver, so far as he remembers the occurrences, corroborates the statement of the driver; but he says, referring to the intestate: ‘The first I saw of him was after the car was at a standstill, and I saw him lying on the track a few feet back of the rear end of the car.’

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