Volkmar v. Manhattan Ry. Co.

• Decision Date: 01 October 1892
• Parties: VOLKMAR v. MANHATTAN RY. CO.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 418

31 N.E. 870

VOLKMAR

v.MANHATTAN RY. CO.

Court of Appeals of New York, Second Division.

Oct. 1, 1892.

Appeal from superior court of New York city, general term.

Action by Henry G. Volkmar against the Manhattan Railway Company. From a judgment of the general term affirming a judgment entered on a verdict directed by the court, (9 N. Y. Supp. 708,) plaintiff appeals. Reversed.

Follett, C. J., and Brown and Parker, JJ., dissenting.

E. R. Leavitt, for appellant.

Brainard Tolles, for respondent.

HAIGHT, J.

This action was brought to recover damages for a personal injury. On the 24th of June, 1885, the plaintiff was driving along Sixth avenue, in the city of New York, in a wagon, going uptown, under the defendant's elevated railroad structure. When near Thirty-ninth street an iron plate or clip, with a part of a broken bolt, fell from the structure, striking him upon the shoulder, causing the injury for which this action was brought. It appears that the bolt was about 14 inches long; that it passed through the guard rail of the defendant's road, the stringer upon which it rested and an iron plate or clip underneath, which was held in place by a nut upon the end of the bolt; that the bolt was broken about two inches from the nut. These facts having been shown, the plaintiff rested. Thereupon the defendant introduced evidence showing a proper construction of its elevated railway, and then called Samuel S. Roach as a witness, who testified that he was the defendant's track walker and inspector at the place where the injury was received by the plaintiff; that it was his duty to move carefully over the track during the daytime to examine carefully all the rails, switches, signals, bolts, and fastenings of all kinds, and to keep them tight; that in June, 1885, he was engaged in following out his instructions; and that he performed them to the best of his ability. The defendant's counsel then moved the court to direct a verdict for the defendant, which motion was granted. The plaintiff asked permission to go to the jury upon the question of the defendant's negligence, upon the ground that the evidence showed that the presumption arose that the defendant was negligent, in view of the fact that the iron plate fell from its structure upon the plaintiff. This request was denied, and an exception was taken by the plaintiff to such denial, and to the direction of a verdict in favor of the defendant. No question is made but that the defendant's elevated railroad was properly constructed. It is claimed, however, that it was negligently suffered to get out of repair, and that because of such negligence the plaintiff suffered the injury complained of. It was the duty of the defendant to exercise ordinary care for the purpose of keeping its structure in proper repair, so as to prevent injury to persons passing over or underneath it. The evidence showed that the bolt was broken, and that in consequence the iron plate or clip fell upon the plaintiff. The structure was consequently out of repair, and, under the circumstances, I think the presumption of negligence follows.

It has been held that, where a building adjoining a street falls into the street, in the absence of explanatory circumstances, negligence will be presumed, and the burden is placed upon the owner of showing the use of ordinary care; that where a plaintiff was passing on a highway under a railroad bridge, when a brick fell from one of the pilasters upon which an iron girder of the bridge rested, striking him upon the shoulder, causing injury, negligence would be presumed; that where a barrel rolled out of the window of a warehouse onto a street, injuring person passing, negligence would be presumed; that where a person, while walking along the street in front of a building, was struck by a falling chisel, the presumption of negligence...