Pinder v. Brooklyn Heights R. Co.

• Decision Date: 17 February 1903
• Parties: PINDER v. BROOKLYN HEIGHTS R. CO.
• Court: New York Court of Appeals Court of Appeals

173 N.Y. 519

66 N.E. 405

PINDER

v.BROOKLYN HEIGHTS R. CO.

Court of Appeals of New York.

Feb. 17, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by James M. Pinder, administrator of Arthur Pinder, deceased, against the Brooklyn Heights Railroad Company. From an order of the Appellate Division (72 N. Y. Supp. 1082) reversing a judgment in favor of defendant and granting a new trial, defendant appeals. Reversed.

Bartlett, J., dissenting.

I. R. Oeland and George D. Yeomans, for appellant.

Robert Stewart, for respondent.

GRAY, J.

The action was brought to recover damages for the death of the plaintiff's intestate, which the complaint alleged to have been caused by the negligence of the defendant in the operation of one of it cars upon the Nostrand avenue route, in Brooklyn. The deceased was, concededly, a bright lad of 14 years of age, with no physical defect, save that of being slightly tongue-tied, and the accident occurred at about 11 o'clock in the evening, as he was upon his way from Rockaway Beach to Bergen Beach-a trip which he had been more or less accustomed to make alone. The plaintiff's complaint was dismissed at the close of his evidence upon the ground that he had failed to show that the deceased was free from contributory negligence, or that the circumstances were such as to furnish inferences in that respect. The Appellate Division reversed the judgment of nonsuit, and ordered a new trial of the action (72 N. Y. Supp. 1082), from which order the defendant appeals to this court.

While the plaintiff is entitled to have the most favorable view taken of the evidence which he adduced in support of his cause of action, the evidence should show facts from which reasonable inferences are directly deducible that the deceased did not contribute, by his own negligence, to the result; and the difficulty in this case is that, unless inferences were permissible to the jurors, based upon other inferences, their verdict for the plaintiff could have had no basis. Adopting the most favorable view of the facts which the plaintiff could claim, the boy, while riding upon the front platform of a car, propelled by electric power, upon a part of Nostrand avenue which was unimproved by buildings, was thrown or kicked from the car by the motorman. He picked himself up, and, walking slowly, crossed the track, upon which his car had been running, and, while in the act of crossing the second, or further, track, was struck by a car returning from Bergen Beach, run over by it, and, from the injuries received, subsequently died. The cause of action set up in the complaint was the negligence of the defendant's servants in so injuring him. The witness of the accident whose evidence is depended upon, and which, alone, could support a finding of the jury adverse to the defendant, was a woman, who at the time was about crossing the defendant's tracks from the direction in which the deceased was proceeding. In substance, she testified that her attention was attracted by the boy's screaming upon the platform, as though endeavoring to have the motorman stop the car; that thereupon the latter kicked the boy off, and the car continued on its way; that the boy, who had fallen upon a path or sidewalk alongside the track, picking himself up slowly, walked, lamely, back a short distance, and proceeded to cross over the tracks, and that the car from the beach, coming at a high rate of speed, struck him, threw him up in the air, and, as he fell upon the track, went over...