131 N.Y.S. 507 | N.Y. App. Div. | 1911
Lead Opinion
Plaintiff, aged thirteen years, was a passenger on one of the trolley cars of the defendant’s railroad on August 26, 1909, being one of a party who had gone to Coney Island on an excursion organized by a charitable society. The party were on their return trip to New York and were carried in six cars, in the sixth or last of which plaintiff was a passenger with her mother. At about four-thirty p. M. that car was on its way, following a route used for special excursion parties over the road, and which led through a private alley or road owned or leased by the railroad, to Surf avenue, into which the car was to turn. Adjoining the alley to the left or east was the Prospect Hotel, operated by the other defendant. This hotel had its frontage on Surf avenue, but on the side next to the alley there was an arched opening in the wall of the building, which in winter was filled in with a window, but which at the time in question was open and covered only with a canvas awning. The opening was some twelve feet high and nine feet.wide. Its lower portion was occupied by a balustrade some thirty-three inches high, above which was an open space of about eighteen inches, and above that being the awning, which completely covered the rest of the space above up to the top where it was attached to a crosspiece of wood two by three inches. The covering was made of medium weight white army duck, hemmed, and to its lower end was attached a pole made of one-inch
On plaintiff’s behalf there was evidence .which, if credited by the jury, would have' established the following facts: (1) That the pole of the awning was dragged along the runway of the car at an angle of forty-five degrees, the elevated end being the one nearer Surf avenue, and that the canvas was flapping and striking the car, first hitting it between the second and third front seats. Plaintiff, it is not disputed, was in the third seat from the rear, on the extreme left side of the car, that is, nearest to the hotel, and the side rails of the car were both down, so no one could enter, or leave; (2) the sound of the canvas was heard some minutes before it struck plaintiff; (3) the pole first hit the stanchion directly back of the motorman and then hit every stanchion in succession until it finally entered the car and struck the plaintiff; (4) the pole struck each of the stanchions and swept, along the side of the car, which latter swung nearer the awning as it started to turn into Surf avenue; (5) it had started to rain and the wind was blowing at the time. These facts were testified to by witnesses who were either on the sidewalk or in the sixth car. In addition two witnesses, were produced, passengers on the fifth or next pre
Upon the whole case, therefore, issues of fact were presented which required submission to the jury.
The judgment appealed from must he reversed and a new trial ordered as against both defendants, with costs to appellant to abide the event.
Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.
Concurrence Opinion
(concurring):
I concur with Mr. Justice Dowling that the proof required the submission of the question of the defendants’ negligence to the jury. The defendant railroad company was a / common carrier and the plaintiff was a passenger. The maxim res ipsa loquitur applied, and this, in connection with the evidence, would justify the jury in finding that the defendant railroad company was negligent. As to the hotel company, no such relation existed between it and the plaintiff. It maintained, however, a structure abutting upon a way or' road that was used as a public street. The public had a right to the use of that street, and the hotel company was bound to see to it that neither its structure nor the use to which any part of it should be put would injure a person lawfully upon the street. It could not maintain for its own purposes a curtain with a pipe of this character to hold it down without its being so securely fastened that it could not blow out upon the street and injure a person lawfully there without responsibility for an injury caused thereby. The evidence is undisputed that the plaintiff was riding in a street car that passed the hotel premises, and
Scott, J., concurred.
judgment reversed and new trial ordered, costs to appellant to abide event.