Stevenson v. Second Avenue Railroad

O’Brien, J. : The amount of damages awarded, when we take into consideration the boy’s age, his earning capacity, and the fact that he was not in rugged health, seems more than a fair compensation to the plaintiff for the loss of services of her son due to the injuries received by him while he was a passenger on the defendant’s car. Although we think the sum excessive, we might, by reducing the verdict to a proper amount, permit the judgment to stand, were it in all other respects right. We think, however, that the learned trial judge, in applying the rules of law to the facts, committed errors which are fatal to the judgment. There was no claim or evidence tending to show that the tracks were defective, or that there was carelessness in the operation of the car, other than the act of the driver in turning his horses suddenly to the right which forced’ the front wheels of the car from the track and threw the passengers into confusion, one of whom falling on the plaintiff’s son caused the injuries for which the recovery is. [478] sought. The most favorable view to the plaintiff that can be taken •of the case, is that the act of the driver in suddenly turning his horses and derailing the car isprvma facie evidence of negligence, and cast upon the defendant the burden of explaining such an unusual occurrence; and that, with such explanation as was offered, was properly submitted to the jury. The learned trial judge, liow•ever, did not submit the case to the jury upon any such theory, but ■directly charged them that the mere fact that the car left the track, with nothing to explain the same, raised no presumption of negligence. It is thus apparent that the trial judge did not concur in the plaintiff’s view that the mere happening of the accident in the manner described raised a presumption of negligence. There was, however, another theory ded-ucible from the testimony •of both Mrs. Jenkins and the conductor, and one which would ■explain the accident, namely, that the act of the driver in pulling his horses to the right was the effect of an effort on his part to avoid ■•a collision with a buggy or vehicle of some sort which came on the track in front of the car. According to the conductor, this vehicle, which was going north on the southerly track, passed the car and suddenly turned in upon the northerly track directly in front of the ■car horses. The court, however, expressly instructed the jury that if the conduct of the driver was actuated by a desire to avoid a collision with a vehicle in front, then their verdict must be for the •defendant. The evidence tpuded to establish that a desire on the part of the •driver to avoid a collision was the cause of the accident; and the •court did not intimate or suggest that the jury might speculate or guess that the driver had unnecessarily or without any sufficient reason pulled his horses to the right and thus thrown the car from the track. The plaintiff, notwithstanding, contends that, upon the •evidence, the jury might have inferred that there was no good reason or cause for the driver’s pulling his horses to the right, and, therefore! that the question of the defendant’s negligence was one for the jury. This contention is of no avail for the reason that the trial judge, as already pointed out, presented the case to the jury on no such theory. The charge of the judge as made must be regarded as the law of the case; and as the plaintiff at the trial took no exception to it, he thus acquiesced in the theory upon which the case was [479] submitted to the jury, namely, that the driver turned his horses for the purpose of avoiding a collision. Such an act was expressly charged not to be negligent. What in effect the respondent now contends for is, that the true rule of law to be applied is that the happening of the accident in the manner detailed raises a presumption of negligence which the defendant was called upon to explain, and which presumption and explanation should have been submitted to the jury. Assuming this to be a correct proposition of law, it is what the judge expressly refused to charge; and we are confronted with a record from which it appears that, upon the theory on which the case was submitted, the only fair inference to be drawn by the jury should have been favorable to the defendant. We might well stop the discussion here, were it not that some criticism is made of a decision of this court in Hastings v. Central Crosstown Railroad Co. (7 App. Div. 312). The respondent cites numerous decisions in support of the proposition for which she contends. Among them is the case of Murphy v. Coney Island & Brooklyn Railroad Co. (36 Hun, 199), a case of the derailment of a horse car, wherein the court says: “ The happening of an accident which in the usual and ordinary course of things would not happen with proper care, casts the burden on the defendant of explaining the accident so as to relieve itself from liability.” (See, also, Pollock v. Brooklyn & Crosstown R. R. Co., 15 N. Y. Supp. 189; Farrell v. IIouston & West St. & Pavonia Ferry R. Co., 4 id. 597; Griffith v. Utica & M. R. Co., 17 id. 692.) It is suggested that, contrary to these decisions, we held in the Hastings Case (supra) that the mere derailment of a street car is not sufficient proof, prima facie, of negligence. We did not so decide. What was there said in regard to the derailment of a street car had reference to the claim made by counsel that the ruling in Edgerton v. N. Y. & H. R. R. Co. (39 N. Y. 227) was applicable, namely, that proof that a car left the track is prima facie evidence of negligence. The criticism of this court was as to the pertinency of the authority, and what followed was merely to illustrate why the rule as to railroads operated by steam should not in every case and as a matter of law be applied to a street car leaving the track. In the Hastings case, as well as in the Pollock Case (supra), there was evidence, not only of the derailment, but also as to its cause. In the [480] Hastings case it appeared that the driver, when in a dangerous situation, struck his horses with a whip, and in the Polloclc case, that the car was thrown from the track on a curve at the time when the driver was looking at some boys who were quarrelling in the street, and there was thus support for the theory that the car jumped the track in turning the curve “ for the want of proper guidance of the horse.” We think the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event. Van Brunt, P. J., and Barrett, J., concurred; Rumsey and Patterson, JJ., dissented. Judgment and order reversed, new trial ordered, costs to appellant to abide event.