6 N.Y.S. 309 | N.Y. Sup. Ct. | 1889
The defendant gave no evidence depending upon the assumed infirmity of the plaintiff’s case. The propositions argued now and urged on the motion to dismiss are: (1) The learned trial justice erred in denying defendant’s motion to dismiss the complaint upon the ground that the plaintiff had failed to show that the piece of iron in question fell from a train or-the structure of defendant’s railway, or was dropped by anyone in the defendant’s employ; and (2) the learned trial justice erred in denying defendant’s motion to dismiss the complaint upon the ground that the plaintiff had failed to show any negligence on the part of the defendant causing the injury. In the effort to sustain the first proposition it is said that there is no evidence whatever connecting the defendant with the fall of the iron. This is somewhat extraordinary when the testimony is that it was seen falling from the direction of the defendant’s train passing at the time, and immediately thereafter striking the plaintiff, there being no other structure at the locus in quo from which it could have fallen. The testimony may be interpreted by ingenious device to mean something else as matter of argument, or speculative theories may be invoked to demonstrate that it was part of a thunderbolt, such as the ancients supposed Jove to employ, and particularly to threaten when worsted in argument; but the fact stated and wholly uncontradicted is that a piece of iron similar to the one shown in court on the trial, and which struck the plaintiff, was seen in the "air falling, and apparently coming from the defendant’s track or train. The second proposition depends for its maintenance upon .a kindred argument, and therefore, if the first be unsound, the second has no force under the facts and circumstances which required the justice presiding at the trial to submit the question of negligence to the jury. That was indeed the only issue, there being no pretense that the plaintiff contributed to his own injury.
It may be unnecessary to say that the plaintiff was entitled to protection from any negligent act of the defendant while in the exercise of any right of
■ Van Brunt, P. J., and Daniels, J., concur.