Buckingham v. Eagle Warehouse & Storage Co.

Putnam, J.: An issue of fact was raised as to how the wagon wheel came to break down. Was it from the van’s quick swerve to pass a vehicle being overtaken, throwing the wheel laterally against the car track, as plaintiff testified, or did this wheel collapse from its load, without contact with the car track, as defendant’s witnesses asserted? With this was involved the question of disputed speed just before the breakdown. Plaintiff said that speed was fifteen miles an hour. Defendant’s chauffeur insisted that he went at only four miles speed along this part of Metropolitan avenue. When reminded that at such rate it would take thirteen hours to get to Port Jefferson, he answered, that with a rough street a chauffeur would take it easy; “ when you come to a car track like that you aren’t going to go fifteen miles.” Asked on re-direct, why at this particular time he went only four miles, he replied significantly: “ I knew if I went any faster this wagon wouldn’t be able to stand for it. Q. Was that on account of the condition of the street? A. On account of the condition of the wagon and the street both.” There was a certain hazard in riding in such a loaded [762] trailer. In choosing to go there instead of riding on the van, plaintiff took the ordinary risks from such a transportation, with the possibilities of this traction causing some side motion to the trailer. But while on his own wagon he was not a trespasser. The court, however, charged: “ If the plaintiff was told that he could not ride upon his wagon, and he never theless persisted in doing so, notwithstanding the warning which the defendant claims was given to him, he was a trespasser; he was not there as a matter of right.” This was duly excepted to. For that error there must be a new trial, with costs to abide the event. Mills and Rich, JJ., concurred; Blackmar, J., read for affirmance, with whom Jenks, P. J., concurred.