83 A.D. 298, Dufrane v. Metropolitan St. Ry. Co.

Citation:83 A.D. 298
Party Name:CATHERINE DU FRANE, as Administratrix, etc., of GEORGE DU FRANE, Deceased, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
Court:New York Supreme Court Appelate Division, First Department

Page 298

83 A.D. 298

CATHERINE DU FRANE, as Administratrix, etc., of GEORGE DU FRANE, Deceased, Respondent,

v.

METROPOLITAN STREET RAILWAY COMPANY, Appellant.

Supreme Court of New York, First Department.

May Term, 1903

APPEAL by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of November, 1902, upon the verdict of a jury for $2,500, and also from an order entered in said clerk's office on the 10th day of November, 1902, denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

Bayard H. Ames, for the appellant.

George F. Hickey, for the respondent.

LAUGHLIN, J.:

This is a statutory action to recover for the death of George Du Frane, alleged to have been caused by the negligence of the defendant. The decedent, while crossing Amsterdam avenue from west

Page 299

to east, either along the northerly crosswalk or diagonally toward the northeast from the northwest corner of One Hundred and Eighty-first street and Amsterdam avenue, on the 19th day of June, 1901, was struck by a north-bound car just as he reached the north-bound street railway track, and thrown between the north and south-bound tracks, and from the injuries received he died on the same day.

No exception was taken upon the trial which presents reversible error. The jury had considerable difficulty in arriving at a verdict, as is manifest from their coming into court for further instructions and subsequently returning to court and announcing their inability to agree, whereupon the court, after advising them that it was important that they should agree upon a verdict and making some suggestions with a view to bringing about an agreement, sent them out again and a sealed verdict was rendered in favor of the plaintiff.

The motion for a new trial was made upon the ground, among other things, that the verdict was against the weight of the evidence, and, upon a careful review of the evidence, we are of the opinion that it should have been granted.

Amsterdam avenue is one hundred feet in width. The carriageway, from curb to curb, is seventy feet, and fifteen feet upon either side is occupied by the sidewalk. The street is paved with rough stones, referred to as cobblestones, but, doubtless, blocks of sandstone. A crosswalk extends across the carriageway along the northerly line of One Hundred and Eighty-first street. The defendant owns and operates a double-track street railway along the avenue. There is a space twenty feet between the inner rails of the tracks and a like space between the outer rails and the curb upon either side The space between the rails of each track and that occupied by the rails is approximately five feet. The accident occurred at about midday, and it is undisputed that there was no other car, vehicle or other obstruction to the view up or down the avenue either way for a distance of three blocks. The evidence all indicates that the decedent was struck by the front extreme westerly or outer corner of the car just as he was stepping upon the track and before he had reached a point between the rails. It thus clearly appears that he must have been struck while taking the first or, at most, the second step which brought him within the range of the body of the car, or...

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