Bittner v. Crosstown St. Ry. Co. of Buffalo

• Decision Date: 04 May 1897
• Citation: 153 N.Y. 76,46 N.E. 1044
• Parties: BITTNER v. CROSSTOWN ST. RY. CO. OF BUFFALO.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 76

46 N.E. 1044

BITTNER

v.CROSSTOWN ST. RY. CO. OF BUFFALO.

Court of Appeals of New York.

May 4, 1897.

Appeal from superior court of Buffalo, general term.

Action by Frank Bittner, as administrator of Charles Bittner, against the Crosstown Street-Railway Company of Buffalo.

This was an action brought by the plaintiff, as administrator of the estate of his infant son, Charles, to recover damages for his death, which he alleged to be due to the negligence of the defendant. The defendant operated an electric street railroad in the city of Buffalo, and the accident in question occurred on October 17, 1892, in the middle of the day, upon Seneca street. The boy was a few months over eight years of age at the time of the occurrence, and was shown by the evidence to have been a bright and intelligent lad. He was running from the south side to the north side of the street, and, there being between the car tracks and the sidewalk a manure wagon drawn by a pair of horses, he ran in front of it, and coming upon the south track, within four or five feet of one of the defendant's cars, then proceeding eastwardly, was struck by it. The car passed over him, and then, upon the reverse action being given by the motorman in his effort to stop the car, it passed backward over his body. According to the evidence of one Toms, the car at first ran over the boy's legs, and then, after having proceeded two or three car lengths, it stopped, backed over him, and then again went forward and over him. Toms testified that he saw the boy try to raise himself after the car had first passed over him, and that before he succeeded in doing so he was again struck down and crushed by the backing of the car. This witness testified that the car was going at the rate of 12 or 15 miles an hour, and that the boy's face, when running across the street, was turned away from the car. As against the testimony of this witness, which was the evidence relied upon at the trial to sustain the plaintiff's cause of action, there was evidence given by a number of witnesses in flat contradiction. A police captain testified that Toms told him a few minutes after the occurrence that he did not see the car run over the boy. A police officer, who saw the accident from a point about 100 feet away, testified that Toms came up only after the accident, and that the boy did not move after the car first passed over him. He also said that the car did not go beyond about half its length over the boy before its action was reversed, and that it did not pass over him the third time. Another police officer, who saw the accident close by, corroborated the testimony of the other officer with respect to how the car passed over the boy, and how it was reversed, and as to the boy's not moving. Three other witnesses, who saw the occurrence from different neighboring points, also agreed that the car only passed over the boy a few feet before it reversed, and that the boy did not move after he was first struck down. The motorman testified that he was going at the usual rate of speed; that a manure wagon was alongside of his car, between it and the sidewalk; that the boy ran around the heads of the horses about four feet ahead of the car, and was almost immediately struck by it in the center of the track. He also testified that, as soon as he saw the boy, he reversed his car, so as not to hit him, and that the effect of his action in reversing the lever was to throw him against the dashboard, and that then, upon the reverse motion being set up, he was thrown against the body of the car. He was not aware of having passed back over the boy, and he said that he did not see Toms, with whom he was acquainted. The plaintiff recovered a verdict, and the judgment upon the same was affirmed by the general term of the superior court of Buffalo, in which court the trial was had. 33 N. Y. Supp. 672. The two judges holding the general term divided in opinion, the effect of which division was to affirm the judgment. The defendant then appealed to this court.

Porter Norton, for appellant.

Emory P. Close, for respondent.

GRAY, J. (after stating the facts).

If it were not for the testimony which was given by the witness Toms upon the trial, it would not be possible to say that there was any evidence upon...