Webber v. Herkimer & M. St. R. Co.

CourtNew York Court of Appeals
Writing for the CourtGRAY
Citation16 N.E. 358,109 N.Y. 311
Decision Date17 April 1888
PartiesWEBBER v. HERKIMER & M. ST. R. CO.

109 N.Y. 311
16 N.E. 358

WEBBER
v.
HERKIMER & M. ST. R. CO.1

Court of Appeals of New York.

April 17, 1888.


Appeal from general term, supreme court, Fourth department.

Action to recover for personal injuries by Rodney C. Webber against the Herkimer & Mohawk Street-Railroad Company. Judgment for defendant, and plaintiff appeals.


[109 N.Y. 311]A. B. Steele, for appellant.

109 N.Y. 312]Samuel Earl, for respondent.
[109 N.Y. 313]GRAY, J.

The plaintiff's complaint, in substance, alleged the making of an agreement between himself and the defendant, a street-railroad company operating as common carriers of passengers between the villages of Herkimer and Mohawk, in this state, by which on June 23, 1879, the defendant, having received him into its car, for a certain compensation then paid by him, undertook and agreed with him to transport him, with care, diligence, and safety to his person, from Herkimer to Mohawk, and that its cars, road, and appurtenances thereto, were safe, suitable, and proper for the accomplishment of that undertaking. It further alleged that the defendant omitted and neglected to perform its said undertaking, and violated the same, in the respect that its car was so constructed that, while in motion, a passenger could not pass from one end to another without stepping outside on a side platform; and that, while on his journey, and in the night-time, the conductor ordered plaintiff to move from the rear end of the car to the front end. While complying with this direction, and in passing along said outside platform, plaintiff was struck by a telegraph pole, crushed against, and thrown from the car into a ditch, and was greatly injured. It alleged that the defendant's servants were well aware that at a certain part of the road the telegraph poles were so near to the track as to make it dangerous for any person to be on the outside platform of the car while passing that point; and that, in ordering plaintiff to move, defendant's servants neglected to warn him of the close proximity of the telegraph poles; and that he was injured without fault on his part. The complaint then alleged the nature and extent of his injuries, and the amount of damages sustained. [109 N.Y. 314]The answer, among other defenses, set forth that this action was brought to recover damages for a personal injury resulting from negligence, and that the cause of action did not accrue within three years next before the commencement of the action. When the case came on for...

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45 practice notes
  • Paver and Wildfoerster v. Catholic High School Ass'n
    • United States
    • New York Court of Appeals
    • February 19, 1976
    ...or 'malpractice', and not the 'contract', Statute of Limitations applies (see, e.g., Webber v. Herkimer & Mohawk St. R.R. Co., 109 N.Y. 311, 314--315, 16 N.E. 358, 359--360; Page 25 Calhoun v. Gale, 29 A.D.2d 766, 767, 287 N.Y.S.2d 710, 711, affd. 23 N.Y.2d 756, 296 N.Y.S.2d 953, 244 N.E.2d......
  • Baratta v. Kozlowski
    • United States
    • New York Supreme Court Appellate Division
    • June 27, 1983
    ...injury lawsuits (see, e.g., Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824; Webber v. Herkimer & Mohawk St. R.R. Co., 109 N.Y. 311, 16 N.E. 358; Loehr v. East Side Omnibus Corp., 259 App.Div. 200, 18 N.Y.S.2d 529, affd. 287 N.Y. 670, 39 N.E.2d 290), but sometimes applied......
  • Kilberg v. Northeast Airlines, Inc.
    • United States
    • New York Court of Appeals
    • January 12, 1961
    ...has no separate right to sue this carrier in contract for causing his intestate's death (Webber v. Herkimer & Mohawk St. R. Co., 109 N.Y. 311, 16 N.E. 358), that the cause of action for injuries did not survive (Bernstein v. Queens County Jockey Club, 222 App.Div. 191, 225 N.Y.S. 449, and c......
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...N.Y.S. 114; Hurlburt v. Gillett, 96 Misc. 585, 161 N.Y.S. 994; Id., 176 A.D. 893, 162 N.Y.S. 1124; Webber v. Herkimer & M. St. Ry. Co., 109 N.Y. 311, 16 N.E. 358. OKLAHOMA: Seanor v. Browne, 154 Okla. 222, 7 P.2d 627; Herron v. Miller, 96 Okla. 59, 220 P. 36; Fort Smith & W. Ry. Co. v. Ford......
  • Request a trial to view additional results
45 cases
  • Paver and Wildfoerster v. Catholic High School Ass'n
    • United States
    • New York Court of Appeals
    • February 19, 1976
    ...or 'malpractice', and not the 'contract', Statute of Limitations applies (see, e.g., Webber v. Herkimer & Mohawk St. R.R. Co., 109 N.Y. 311, 314--315, 16 N.E. 358, 359--360; Page 25 Calhoun v. Gale, 29 A.D.2d 766, 767, 287 N.Y.S.2d 710, 711, affd. 23 N.Y.2d 756, 296 N.Y.S.2d 953, 244 N.E.2d......
  • Baratta v. Kozlowski
    • United States
    • New York Supreme Court Appellate Division
    • June 27, 1983
    ...injury lawsuits (see, e.g., Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824; Webber v. Herkimer & Mohawk St. R.R. Co., 109 N.Y. 311, 16 N.E. 358; Loehr v. East Side Omnibus Corp., 259 App.Div. 200, 18 N.Y.S.2d 529, affd. 287 N.Y. 670, 39 N.E.2d 290), but sometimes applied......
  • Kilberg v. Northeast Airlines, Inc.
    • United States
    • New York Court of Appeals
    • January 12, 1961
    ...has no separate right to sue this carrier in contract for causing his intestate's death (Webber v. Herkimer & Mohawk St. R. Co., 109 N.Y. 311, 16 N.E. 358), that the cause of action for injuries did not survive (Bernstein v. Queens County Jockey Club, 222 App.Div. 191, 225 N.Y.S. 449, and c......
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...N.Y.S. 114; Hurlburt v. Gillett, 96 Misc. 585, 161 N.Y.S. 994; Id., 176 A.D. 893, 162 N.Y.S. 1124; Webber v. Herkimer & M. St. Ry. Co., 109 N.Y. 311, 16 N.E. 358. OKLAHOMA: Seanor v. Browne, 154 Okla. 222, 7 P.2d 627; Herron v. Miller, 96 Okla. 59, 220 P. 36; Fort Smith & W. Ry. Co. v. Ford......
  • Request a trial to view additional results

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