| N.Y. App. Div. | Jul 1, 1903
The judgment recovered by the plaintiff is for injuries to a horse, wagon and harness belonging to him, occasioned by a rear-end collision with one of the defendant’s cars, in the borough of Brooklyn. The plaintiff is a contractor, and the property in question was at the time in the charge of a driver in his employ engaged at the time in carrying mail. The driver drove upon the north-bound track on Third avenue at Sixty fifth street, and continued driving north, or toward the City Hall, until he reached a point between Sixty-second and Sixty-first streets, when he was run into and the damages complained of occasioned. He estimates the distance he so drove at about 850 feet. It was late at night and very dark. He neither looked back at any time before the collision, nor, so far as his evidence shows, did he listen for an approaching car. He was familiar with the locality and knew that cars were likely to come on the track behind him, and also knew the speed at which they were customarily run. While there was sufficietit evidence to sustain the conclusion that the car was run on this occasion at a high rate of speed and under circumstances indicative of negligence, it is evident from the statement of the driver’s conduct that the plaintiff has failed to prove affirmatively the freedom from contributory negligence which the law requires as a condition precedent to recovery in this class of cases.
In Quinn v. Brooklyn City R. R. Co. (40 A.D. 608" court="N.Y. App. Div." date_filed="1899-04-18" href="https://app.midpage.ai/document/quinn-v-brooklyn-city-railroad-7336039?utm_source=webapp" opinion_id="7336039">40 App. Div. 608) the rule is repeated with .the additional -statement in reference to the necessity of exercising some of the senses that “ for a failure to gorove the exercise of such caution we have reversed judgments, obtained by the plaintiffs in actions for negligence.” The rule has been frequently applied in this court, a recent instance being in the case of Reynolds v. Larchmont Horse R. Co.. (83 A.D. 189" court="N.Y. App. Div." date_filed="1903-05-15" href="https://app.midpage.ai/document/reynolds-v-larchmont-horse-railway-co-5193343?utm_source=webapp" opinion_id="5193343">83 App. Div. 189).
The plaintiff’s driver testified that his hearing was good, but that nevertheless he did not hear the car until his wagon was actually struck by it. There is no inference to be drawn from this circumstance that he was on the alert and listening for it, but rather in view of the well-known fact that trolley cars cannot be run at a high rate of speed in the silence of the night without making some noise that the reason he did not hear was because he was not listening. At all events the burden of proving affirmatively that the driver did exercise his senses rests upon the plaintiff; a total failure to make any proof whatever upon that subject is a violation, of the rule referred to, and a recovery under such circumstances would be based upon the theory unknown to our law that one who drives upon a railroad track until negligently run into and injured may Obtain damages upon the mere proof of the happening of the casualty.
The point was raised by an exception to the denial of the defendant’s motion for a nonsuit, and it was also raised and emphasized by the defendant’s exception to the court’s refusal to charge that if the plaintiff (meaning of course through his driver) “ drove 800 feet or
It follows that the judgment and order should be reversed.
'Bartlett, Woodward, Jenks and Hooker, JJ., concurred.
Judgment and order reversed and new trial granted, costs to: abide the event.