Hogan v. Cent. Park
| Decision Date | 03 March 1891 |
| Citation | 124 N.Y. 647,26 N.E. 950 |
| Parties | HOGAN v. CENTRAL PARK, N. & E. R. R. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from superior court of New York city, general term.
Defendant appealed from a judgment which affirmed a judgment entered on a verdict, and also affirmed an order denying defendant's motion for a new trial made on the minutes.
Henry Thompson, for appellant.
Daniel P. Hays, for respondent.
This action was begun February 10, 1888, to recover, under section 1902 of the Code of Civil Procedure, damages of the defendant for having, as it is alleged, on the 18th day of August, 1887, negligently caused the death of the plaintiff's son, a lad 12 years old. At the date of the accident the defendant owned and operated a surface railroad in Fifty-Ninth and in other streets in the city of New York, using, in part, cars drawn by one horse, and managed solely by a driver. About 9 o'clock in the evening of August 18th, the decedent and several boys, not intending to pay their fares, got onto the rear platform of one of defendant's cars, then going west, in East Fifty-Ninth street, and between First and Second avenues. Before the car reached Second avenue, all of the boys, at the command of the driver, left it, except the decedent, who sat on the south, or left, side of the rear platform. As the car crossed Second avenue, Frank Ribarvarro, a lad 15 years old, got onto the north, or right, side of the same platform, for the purpose of having a free ride. When the car was about opposite No. 224. East Fifty-Ninth street, the driver started to go towards the rear platform for the purpose of compelling the boys to leave the car, but before he reached them they jumped off,-Ribarvarro on the north, and the decedent on the south, side; the latter falling under one of the defendant's cars running east on the other track, and was killed. It is not asserted that the driver touched either boy, but it was testified that he went to wards them in a threatening manner, and so terrified them that they jumped off in the manner described, and it is alleged that the defendant's driver negligently caused the accident. Whether he threatened the lads with bodily harm was contested on the trial, and the question of liability was held to turn upon the decision of that question of fact. The jury was instructed: ‘If you believe from the evidence that this driver advanced in a menacing manner upon these boys at that instant, and impressed himself, or manifestly was likely to impress, upon their minds, the fact that they were in danger of assault, no matter how little, from him in his effort to drive them, and chiefly the deceased boy, from the car, why then, so far that would be an element that would warrant...
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Ansteth v. Buffalo Ry. Co.
...track, without looking, and was struck by a car moving upon that track. It was held that a nonsuit was improper. In Hogan v. Railroad Co., 124 N. Y. 647, 26 N. E. 950, a boy 12 years of age was stealing a ride upon the rear platform of one of the defendant's cars, which was managed by the d......
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