63 N.Y.S. 16 | N.Y. Sup. Ct. | 1900
I cannot bring myself to assent to the proposition that proof that a person fell or an accident happened at a given place is evidence that the conditions there were “ obviously ” dangerous. If the decided cases be examined superficially, and more with a view o'f getting hold of something that was said in them than of what was decided, sentences may be found here and there to support it. But that is nothing; it is not everything that may be said, but only what is actually decided, that may serve as authority. What has to be proven in a given case of alleged negligence is not merely that the place or condition was in fact dangerous, but that it
In the present case the question excluded did not call for an answer showing that the previous derailment was at the same place and under the same conditions as the one the plaintiff complained of. It was left to the witness to- say or assume that it was “ at this point in question ”, and the speed was not shown. Proof of such prior derailment was therefore not competent as notice to- the defendant of a defect in the track, i. e., the absence of a flange or guardrail, at the point where the derailment complained of happened, if it be granted that'the so-called curve-, i. e., with a radius of 2000 feet, was one upon which danger of derailment could be based, so that a flange or guardrail was needed. But there was no evidence that a flange or guardrail is necessary or usual on such a slight curve.
The motion for a new trial is denied.