Race v. Union Ferry Co. of New York & Brooklyn

• Decision Date: 06 June 1893
• Citation: 138 N.Y. 644,34 N.E. 280
• Parties: RACE v. UNION FERRY CO. OF NEW YORK & BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 644

34 N.E. 280

RACE

v.UNION FERRY CO. OF NEW YORK & BROOKLYN.

Court of Appeals of New York.

June 6, 1893.

Appeal from city court of Brooklyn, general term.

Action by Mary Louise Race against the Union Ferry Company of New York and Brooklyn. From a judgment of the general term (19 N. Y. Supp. 675) affirming a judgment of the trial term for plaintiff, defendant appeals. Reversed.

Joseph S. Auerbach, for appellant.

Dailey, Bell & Crane, (James D. Bell, of counsel,) for respondent.

EARL, J.

On the 6th day of December, 1890, between the hours of 4 and 5 o'clock P. M., the plaintiff, desiring to return to her home in New York from Brooklyn, went to the Fulton ferry, and in passing from the ferry bridge on to the ferryboat she fell down and was injured, and she brought this action to recover damages for her injuries. Her claim of negligence against the defendant is that the boat was 18 or 20 inches lower than the bridge, and that that was the occasion of her fall. She was the sole witness upon the trial to the accident. She produced no other witness who saw the accident, or heard of it at the time. She did not at the time make any complaint to any one connected with the ferry, and she produced no evidence but her own to show that the boat was lower than the bridge. The substance of her evidence to show that the boat was lower is as follows: ‘I fell on the boat from off the bridge. I fell on the boat because the boat was so much lower than the bridge. That is a fact. I didn't discover that this boat was below the bridge at all until after I had fallen. I should judge from the fall that the deck of the boat must have been eighteen or twenty inches below the bridge, for the fall was a terrible fall, I can tell you. I know what you mean by the bridge descending to the ferryboat. Whether that bridge was on a level or was inclined downwards at that time I couldn't see. I couldn't tell whether it was inclined down. I couldn't see whether it was. If I could, why, I wouldn't have fell. Question. I am asking you about the bridge, not about the boat at all. You got upon top of the bridge, and when you did you were some distance from the boat. Before you commenced to go to the boat at all, after you got on the bridge, was the bridge level, or was there a decline? The Court: Did you walk down when you went on the boat, or did you walk up? The Witness: I can't tell whether it was up or down. I can't tell, because I don't remember whether it was up or down. I walked along about my business, and didn't take any notice of the bridge. * * * I passed down the bridge, and I stepped from the bridge to the boat, and fell because the boat was below the bridge; and then it was that I got the fall that injured me. I didn't know anything about the boat being below the bridge until I fell, because I couldn't see. I didn't think to look. I walked right along as usual. I didn't look. I went about my business; walked right along. Q. Please answer my question. You didn't look, you say; but, if you had looked, it was sufficiently near to you to see? A. Sufficiently what? Q. The boat was sufficiently...