Loudoun v. Eighth Ave. R. Co.

• Decision Date: 27 March 1900
• Citation: 56 N.E. 988,162 N.Y. 380
• Parties: LOUDOUN v. EIGHTH AVE. R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 380

56 N.E. 988

LOUDOUN

v.EIGHTH AVE. R. CO. et al.

Court of Appeals of New York.

March 27, 1900.

Appeal from supreme court, appellate division, First department.

Action by Imogene Maud Loudoun against the Eighth Avenue Railroad Company and the Third Avenue Railroad Company. From a judgment of the appellate division (44 N. Y. Supp. 742) affirming a judgment in favor of plaintiff, defendants appeal. Reversed.

John Hardy, for appellant Eighth Ave. R. Co.

Herbert R. Limburger for appellant Third Ave. R. Co.

C. N. Bovee, Jr., and J. Baldwin Hands, for respondent.

CULLEN, J.

This action was brought to recover damages for personal injuries alleged to have been received in a collision between the cars of the two defendants. The plaintiff and her husband were passengers in an open horse car on the Eighth Avenue Railroad. The Third Avenue Railroad Company operated a cable road on One Hundred and Twenty-Fifth street, which crosses Eighth avenue at right angles. At the time of the collision the plaintiff was sitting in the rear seat of the Eighth Avenue car. That car, while passing over the intersection of the two roads, was struck by the cable car at the point where the plaintiff was sitting, with such force as to throw the horse car from the track. The plaintiff was thrown down from her seat, and undoubtedly was bruised, but whether she received the serious injuries to her nerves and health for which she was allowed compensation was a matter of controversy. The evidence as to the manner in which the collision occurred is extremely meager, consisting only of the testimony of the plaintiff and her husband. Neither defendantproduced as witnesses the employés in charge of its car. Neither the plaintiff nor her husband noticed the approach of the cable car, and they were able to state only that, while the car in which they were riding was passing over the crossing, it was struck by the other car.

We agree with the learned court below that the details of the collision, meager as they were, required submission to the jury of the issue of negligence as to each defendant, and that a nonsuit as to either would have been improper. It is true, as claimed by the Third Avenue Railroad Company, that the fact that the Eighth Avenue Railroad car was first on the crossing does not conclusively show that such car had the right of way. But, in the absence of any evidence showing the relative position or speed of the two cars as they approached the intersection, it did constitute evidence from which the jury might have inferred that the Eighth Avenue car was entitled to precedence. The cogency of the evidence would also depend on the part of the horse car that was struck by the cable car. In the present case it appears that the horses and a great portion of the car itself had passed the crossing before the collision occurred. We do not say that on this proof the defendant the Third Avenue Railroad Company was negligent, as matter of law, but only that it was a question of fact for the jury.

We are of opinion, however, that the learned trial judge erred in his instructions to the jury, and that for such errors this judgment must be reversed. The court charged: ‘It is therefore a reasonable presumption, in the absence of any explanation, that the accident resulted from the want of ordinary care on the part of the defendants. When the plaintiff rested her case, therefore, the burden was upon the defendants of showing such facts as warrant the conclusion that the accident was due to circumstances which the exercise of ordinary care could not foresee and guard against. Now, no testimony is offered by the defendants to overcome this presumption. The driver of the Eighth Avenue car was not called. It does not appear that he was where he could be called. There is no explanation given, and therefore I am bound to say to you that there is no testimony to overcome the presumption of negligence which the circumstances have disclosed. There is no testimony on the part of the defendants to overcome the presumption created by the circumstances under which the collision took place.’ As we read this part of the charge, the issue of the defendants' negligence was substantially taken away from the jury. It is true that the court repeatedly charged that the burden of proof rested on the plaintiff to establish each element of her case, including that of the negligence of the defendants. But, taken in connection with the portion of the charge quoted, that the accident raised a presumption of negligence, and that there was no testimony to overcome the presumption, the jury was substantially told the plaintiff had successfully borne that burden. Each defendant took an exception to that part of the charge which instructed the jury that the accident raised a presumption of negligence against it, calling for an explanation, though neither seems to have excepted to the charge that no explanation had been given.

The appellant the Third Avenue Railroad Company insists that the doctrine, ‘Res ipse loquitur,’ does not apply to it, and that the instruction that the occurrence of the collision raised a presumption of negligence upon its part calling for an explanation was erroneous. With this claim we agree. Falke v. Railroad Co., 38 App. Div. 49,55 N. Y. Supp. 984. That defendant, not being the carrier, was bound only to the...