41 N.Y.S. 78 | N.Y. App. Div. | 1896
The defendant maintains an electric railway in Brooklyn which passes through Thirty-ninth street. According to an expert electrician, who was a witness for the plaintiff, the trolley wire is the positive and the rails form the negative pole; and the current, in the
The present suit was instituted in the County Court of Kings county to recover damages for the loss of the animal, whose value was proved to be from $100 to $250. The learned trial judge dismissed the complaint, holding that the action could not be sustained and saying to plaintiff’s counsel: “ This road was lawfully constructed and there is no proof in the case that there was any fault in its construction or that in its running there was any negligence. I think you are bound to show at least some fact from which an inference of negligence could be drawn. I am of the opinion that it would be mere speculation for the jury to say that this shock was the result of negligence or inaction or want of repair on the part of this defendant.”
We find it impossible to take the same view of the proof. On the contrary, we think there was clearly enough in the plaintiff’s evidence to call upon the defendant for some explanation of the accident. That evidence' amply warranted the inference that the horse was killed by an electric shock received from some source. The defendant confessedly had established, and was operating, a railway which employed electricity in wires over the street and in wires upon its surface. Here were sources from which, or agencies by which, an electric current could be generated, under such conditions and with such direction and force, as to be capable of killing a horse, traveling along the roadbed and touching one of the - rails with his foot. It is true, the expert testimony indicated that such an accident could not occur unless, through the defective insulation of the
We are asked wholly to discredit .the plaintiff’s' evidence because there is some testimony in the record to the effect that an electric shock sufficient to have killed his horse would have left marks on the animal’s body. As to this point it is sufficient to say that the case does not show whether there were any scars on the" horse or not.
The exceptions must be sustained and a new trial granted, with costs to abide the event.
All concurred.
Exceptions sustained and new trial granted, costs to abide the event.