67 N.Y.S. 21 | N.Y. App. Div. | 1900
The plaintiff seeks to recover damages for injuries sustained while a passenger in one of the cars of- the defendant, the complaint alleging that, “ without any previous warning, and by reason of the carelessness and negligence of the defendant, the said car was thrown from the track upon which it was running with great speed, causing the occupants of the car to be thrown from their seats,” causing the injury of which plaintiff complains. The action appears to have been tried and submitted to the jury upon the theory that the carelessness and negligence complained of was due, to the manner in which the car was operated, and there is no exception to the charge of the court to the jury in which this view of the case is taken. Upon the trial, however, plaintiff’s counsel offered to prove that other accidents of a like nature had happened in the locality, and the exceptions taken to the exclusion of this evidence present the only questions upon this appeal.
Assuming that the exceptions raise the question, we are of opinion that reversible error is not shown under the circumstances of this case. The theory up>on which evidence .of previous accidents is admitted is to show that a condition of facts present at the time of the accident was in fact dangerous, and that notice of the danger had been brought, actually or constructively, to the attention of the party who owed the duty of maintaining the particular place in a condition of safety. Proceeding upon the theory that the accident was due to the defendant operating its car with great speed and in a careless and negligent manner, the plaintiff asked the witness William Salzer, who had testified as to the general location and the con
So in the case of Wooley v. Grand Street & Newtown R. R. Co. (83 N. Y. 121, 130) it was held that- “ It was not error to receive testimony of the fact that there had been other accidents at the same switch,” but the evidence related to accidents at a given place, and at the place where'the plaintiff received the injury for which he sought to recover, and involved the same principle as in the case of Lundbeck v. City of Brooklyn (supra). The location of the switch, the manner of its construction, and the fact that it stood above the level of the street, were all in evidence; it was also in evidence that the plaintiff’s mishap occurred at this particular switch, and evidence of the previous accidents was admissible to show that the defendant must have had notice of the dangers which its" continued use- in the then condition entailed. There were no such facts before the jury in the case at, bar, and the exclusion of the evidence was proper.
The judgment and order appealed from should be affirmed, with costs.
All concurred, except Hirschberg, J., dissenting.
Judgment and order affirmed, with costs.