72 N.Y.S. 954 | N.Y. App. Div. | 1901
The plaintiff’s intestate, Walter Mathison, was run over by one of the defendant’s cars upon Richmond avenue, Staten Island, late on the evening of the ist day of November, 1899. His dead body was found shortly afterward on the railroad track between 15 and 30 feet from the place where the car stopped. About a quarter of an hour prior to the time of this accident, Mathison had alighted, near the point where it occurred, from another car of the defendant, upon which, he had been a passenger.' There was evidence tending to show that while he was in the car and at the time when he left it he was somewhat intoxicated, but he was able to walk, and was last seen by the conductor proceeding unsteadily in the direction of his home, which was in the neighborhood. The allegation of negligence in the complaint is that “the said Walter Mathison, while lying in an unconscious condition upon or near the rails of said defendant’s road, on said Richmond turnpike, near Quinlan avenue, one of the cars so operated by the defendant and under the control of and in charge of the servants of the defendant was so negligently, carelessly, and recklessly managed and operated by the defendant, its servants and agents, and was by them run at such a high and unlawful rate of speed, that the said car ran into and upon the body of said Walter Mathison, and did then and there strike and kill the said Walter Mathison.” No person was called to testify on the trial who was an eyewitness of the accident, nor was there any evidence as to the rate of speed at which the defendant’s car was moving at the time it struck the body of the plaintiff’s intestate: Furthermore, there was an utter failure to establish by any testi
The appellant criticises a number of rulings of the trial judge in the exclusion of testimony, but the exceptions to these rulings may be disregarded, inasmuch as none of the testimony sought to be introduced related to the position of the deceased at or immediately before the time of the accident.
I think the judgment should be affirmed.
Judgment affirmed, with costs. All concur.