Breen v. New York Cent. & H.R.R. Co.

• Decision Date: 10 April 1888
• Citation: 109 N.Y. 297,16 N.E. 60
• Court: New York Court of Appeals Court of Appeals
• Parties: BREEN v. NEW YORK CENT. & H. R. R. CO.

109 N.Y. 297

16 N.E. 60

BREEN

v.NEW YORK CENT. & H. R. R. CO.¹

Court of Appeals of New York.

April 10, 1888.

Appeal from general term, supreme court, Third department.

Action by Mathew D. Breen against the New York Central & Hudson River Railroad Company, for injuries received while a passenger on defendant's train. A verdict of $6,000 was rendered in the circuit court, which the general term refused to disturb, and defendant appeals.

Hamilton Harris, for appellant.

E. Countryman, for respondent.

DANFORTH, J.

The learned counsel for the appellant asks for a reversal of the judgment and a new trial, upon two grounds: First, that the injury to the plaintiff was caused by his own negligence; and, second, that the defendant, on the occasion in question, was free from negligence. The jury had both propositions before them, after instructions from the court, to which no objection is now made; and the general term was of opinion that the case was properly submitted to them. The judgment must stand, therefore, if there was evidence proper for the consideration of the jury, and sufficient to some reasonable view to induce the verdict. The plaintiff, a passenger on defendant's road, was entitled to be carried safely, so far as that could be effected by reasonable care on its part in the conduct of its business. The complaint is that while proceeding on his journey from Hudson northerly to Albany, he ‘was struck upon the left arm by a portion of a car door or other part of a freight train running on the defendant's road in an opposite direction,’ and seriously injured. He was at the time sitting by a window, his arm resting upon its sill. Whether it protruded beyond the sill and outside the car was a question upon the trial, and given to the jury, with directions to find a verdict for the defendant if that question was answered by them in the affirmative. Their verdict in favor of the plaintiff shows that in their opinion the plaintiff was wholly within the car. There is evidence to that effect. The plaintiff says, in one hand he had a paper, in the other a cigar. His arm rested on the window-sill. The window was raised, but ‘could have fallen down without touching my arm;’ at that moment a freight train was passing by, ‘and something on the freight train struck my arm, and smashed it.’ The conductor came in and said he was on the next car, and he thought there was some accident when the lever to stop the train was pulled by the brakeman. One S., also a passenger, sitting near and behind the plaintiff, described his position, and said, on cross-examination by defendant's counsel, ‘I think if the window had come down it would not have hit his arm.’ ‘Just the end of the arm rested on the sill.’ Another passenger, one W., giving a somewhat different account of the construction of the window casing, gives evidence in corroboration of the plaintiff's assertion that his arm was inside, and not outside, the car window. The freight train, as it passed Castleton, shortly before meeting the passenger train, was observed by one Simon, who...