Gumb v. Twenty-Third St. Ry. Co.

• Decision Date: 04 June 1889
• Parties: GUMB v. TWENTY-THIRD ST. RY. CO.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 411

21 N.E. 993

GUMB

v.TWENTY-THIRD ST. RY. CO.¹

Court of Appeals of New York,

Second Division.

June 4, 1889.

Appeal from superior court of New York city, general term.

Action by Charles B. Gumb against the Twenty-Third Street Railway Company, for damages sustained by plaintiff through injuries caused by defendant's alleged negligence. Verdict and judgment for plaintiff, and defendant appeals.

BRADLEY, J., dissenting.

Welton Percy

, for appellant.

Charles M. Hough, for respondent.

FOLLETT, C. J.

At the intersection of Sixth avenue and Twenty-Third street the tracks of the defendant and of the Sixth-Avenue Railroad cross each other nearly at right angles. On February 12, 1883, a Sixth-Avenue car was moving north on the east track of that line, closely followed from Carmine street to Twenty-Third street by a butcher's wagon, with its wheels on the rails, drawn by one horse, driven by the plaintiff, who owned horse and wagon. This car stopped to receive and discharge passengers at the north cross-walk of Twenty-Third street. The plaintiff stopped his horse immediately behind the car. As this occurred, one of defendant's cars approached from the west, on the north track of its line, collided with the hind wheels of plaintiff's wagon, overturned, broke it, and, as it is asserted, injured the plaintiff's left leg. The plaintiff testified that the head of his horse was close to the rear end of the Sixth-Avenue car, with the hind wheels of his wagon standing midway between the rails of the north track of defendant's line, and that defendant's car was driven against the hind end of his wagon. Foley, plaintiff's witness, testified that the rims of the hind wheels stood over the north rail of the north track. Edwards, defendant's driver, testified that the hind wheels stood far enough north of the north rail to have permitted the car to pass without touching, but that, as the car was passing, the plaintiff's wagon was backed in the way of the car. This, and the rate of speed of the defendant's car, were the principal facts in dispute. The plaintiff testified that he saw the defendant's car approaching rapidly; but he did not explain why he made no attempt to turn to the right or left of the Sixth-Avenue car, and leave the track. There is no evidence that anything prevented him from doing so. The plaintiff was permitted to testify, over defendant's objection, that the evidence was not within the issue; that, while suffering from his injury, he employed two men to work in his place, paying them $12 and $15 per week each,-$135 in the aggregate. When a plaintiff alleges that his person has been injured, and proves the allegation, the law implies damages, and he may recover such as necessarily and immediately flow from the injury, (which are called general damages,) under a general allegation that damages were sustained; but, if he seeks to recover damages for consequences which do...