McCann v. Sixth Ave. R. Co.
| Decision Date | 17 December 1889 |
| Citation | 117 N.Y. 505,23 N.E. 164 |
| Parties | McCANN v. SIXTH AVE. 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.
Action by Francis J. McCann, an infant, by guardian, against the Sixth Avenue Railroad Company, to recover damages for personal injuries. The trial court directed a verdict for defendant, and a judgment entered thereon was affirmed by the general term of the superior court of New York city. From this judgment plaintiff appeals.
Kellogg & Kilgen,(James C. Foley, of counsel,) for appellant.
D. M. Porter, for respondent.
This appeal must prevail; and as that conclusion requires a new trial, when other evidence may be produced, which, with that already discovered, will be weighed by a jury, it is unnecessary to do more than state the grounds of our decision. There was, in the first instance, on the part of the plaintiff, evidence of a conclusive nature, and which, if credible, would amount to proof of the negligence alleged in the complaint as ground of defendant's liability. The place of injury was a public street, and the defendant's car was running up-town at an unlawful speed. The way was thus made dangerous to a wayfarer, the horses themselves rendered less manageable, and the car more difficult to stop. There was also evidence of the same nature, derived from positive testimony and circumstances attending the transaction, from which it might be inferred that the plaintiff failed in no degree to exercise ordinary care. He was technically a trespasser upon another car of the defendant,-a down-town car, but then standing at the crossing; not intending to be a passenger, but to cross its platform, in order to escape a truck which seemed coming down upon him. At that instant the conductor of the down-town car stepped towards him in a threatening manner, and kicked at him; and the boy, to avoid the kick, jumped from the platform. He did not see the car coming up; nor did he look for it. He alighted in the middle of its track, and was run over. Except for this act of the conductor, the haste of the boy would seem heedlessness, and his omission to look for an approaching car affords such evidence of carelessness as would be quite persuasive. But his conduct is to be weighed with that of the conductor, and for the act of the conductor the defendant is responsible. Clark v. Railroad Co., 40 Hun, 605, affirmed, 113 N. Y. 670, 21 N. E. Rep....
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