60 N.Y.S. 616 | N.Y. App. Div. | 1899
It is impossible from the evidence to point out any specific act of negligence on the part of the defendant’s gripman which cailscd the accident. The judge apparently, as shown in his charge to the jury, placed it upon the failure to ring the gong. He instructed them .that as a matter of law it was not necessary to ring the gong at every crossing, but that it was a question for them to determine whether upon the conditions existing at the time, with the boys on or near the track, the gong should have been rung.
If the boy Was so situated that the gripman saw or should have seen the boy in a position of danger, the failure to ring the gong, if .time permitted, might be evidence of negligence.
The testimony of some of the plaintiff’s witnesses and of both of the defendant’s witnesses, however, tended to show that the boys were proceeding from the westerly side in a northeasterly direction across the avenue, running towards a candy store on the east side of the avenue, and that the other boys having got safely across, the plaintiff, who had dropped his penny, stopped for the purpose of finding it and while in that position was struck by. the advancing car, the approach of' which it must be assumed he did not notice. If the boy, after starting to run across' the track, stopped to pick up the penny and asa result was injured, then the facts would bring ■it within the principle of the Fenton case (Fenton v. Second Avenue R. R. Co., 126 N. Y. 625) and no recovery could be had.
The main difficulty with the case is that there is no agreement among the witnesses as to just how the accident occurred, nor any clear or intelligent statement of the direction from which the boys
The gripman, so far as the evidence shows, had no reason to anticipate that the boy whilst proceeding with the others across the track would stoop down to pick up a penny when a car was approaching rapidly. And no witness says that the gripman did not apply the brakes as soon as he discovered the boy’s position. One says the car could be stopped in about twenty-five feet, but it was shown that the car stopped about thirty-five feet above the north crossing.' As the boy was at some point north of the north crossing, it was not shown that the gripman did not stop in the shortest possible time after he saw the boy stooping on the track to get his penny.
If we assume the version of the occurrence supported by the weight of evidence, that the boy was running across the track and could have crossed in safety but for his stopping to pick up the. penny, it cannot be inferred that the gripman was negligent because he devoted his energies to the brake and failed to ring the gong. With the hoy suddenly stooping in front of the car, he could not be saved by ringing the gong, and the duty of the gripman was to give all his attention to stopping the car. That he did not so devote himself is not made to appear, although that was the burden resting on the plaintiff.
To sustain this judgment we must be satisfied to have it rest on the purest speculation and conjecture rather than, as the law requires, on proof that the defendant’s employees were guilty of negligence which was the sole cause of the injuries.
The judgment should be reversed and a new trial granted, with costs to appellant to abide event.'
Van Beunt, P. J., Patteeson, Ingeaham and McLaughlin, JJ., concurred.
Judgment reversed, new trial granted, costs to appellant to abide event.