97 N.Y.S. 954 | N.Y. App. Div. | 1906
.In Dwyer v. President, etc., D. & H. Canal Co. (affirmed in this department without opinion, 17 App. Div. 623) plaintiff . was walking along a highway adjoining a railroad and was.struck by a bundle of papers which was thrown from a passing train by a person who was not an employee of the railroad company . but was an. employee of a news company,which was accustomed to take its papers over this road and employed a man for the purpose' of putting them off -a| different stations. ’ In that case Justice Alton B. Barker, at the Trial Term, submitted to the jury tile question as to; whether it was the - custom thus to throw these papers from the - moving train, and as to whether that custom was known to the railroad company, charging that if the defendant in that case knew of that custom- and permitted it, it thereby became liable to the'plaintiff for any damages suffered by him therefro'm. The jury found a verdict for the' plaintiff, and‘the judgment entered, thereupon was unanimously affirmed in this court. - '
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.