The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-31

Before Judge PhHlpa
JULY zss-Jsh~ Hoim,!'y W 1hs Harlem RcR-
till. ~,
The plaintiff complains and alleges that the de-
fendants laid down Q railroad track and Iron
rails In the Fourth avenue. In the oty d New York,
and continued the same & ON tho 1t day Of Nay,
1850, TO the LIST day OF December 1885, and % Caro-
lessly and neggently laid and conducted said tJs X
and railroad, toat while the plaintiff Va: driving
across said nail and track. 70 wit, on OF about the
Esd day Of November 1853, the horse Of the plain.
till became entanged therein, and got bis foot fast
ia raid iail and ira k and was greatly Injured to
the plaintiff. damage o. two hundred IN ,S ....a
and deny any liability on their part.
1t appears that on the 23d Of November last,
while tie servsnt Of plant q was driving his horse
and cert through Twenty eighth street, and across
Fourth avenue. tie ",ork OF the shoe on the "near
hind foot" Of the horse caught and became jsmmed
In the rails, throwing the horse down, and tearing
the hoof from the skin and Aesh, and senousy
damaging him for life. One witness testified thst
the "man rail" had become 80 battered that the
Change" Of the wheels Of the cars had cut through
the guard rail" at the junction Of tho Fourth ave-
lue and Twenty eighth street. Opposed to this the
Superintendent Of the horse power, track master,
and two track layers whose duty call their atteu.
ton to tie state Of the track testified that the road
and rails at the point In question were 10 perfect
order.
PHILLIPS, Judge-To make the defendants liable
in this action, the laintif must show ai rmstyely
some degree of negligence on the part Of the Com
pany either in their original mode OF constructing
the track or in keeping 1t in proper repair. IL Is
rot sufficient to show simply that tbe horse became
damaged by becoming enrangled In the track, but
the p antlt must ert blsh some at, etrer Of
omi zion or comniss sion, on the part Of the de-
LdsIts to hold them accountable. Ii Is ne that
one witness for the plaintiff does testify that tho
"Ruard rail- at the point where the acc dent oc-
curiea 1as cut through, but he was not present at
the time of the accident and does not and cannot
fautff hat .f,av, Nko Il
1t s said by the counsel for the plaintiff that the
evidence adduced by the defendants to show the
cor dition Of the ira and the rails Ia mere mega
tive root. 10 this sol Mr. Sloat, tie Superin-
ebdeht of the horse power, was present at the time
OF The accident. and testified that the rails 80
firmly secured that he was compelled to pry up the
rail with crowbar for some inches, 10 order to ex
tricate tho horses foot, and that the guard aud
main rails were in perfect order. The track master
and track layers who have express charge Of tho
track and rails all testify positively that the track
has been in perfect order a. the point In question
from the time when the present rails were originally
laid (some three years ago) to the day Of trial Il
this negative proof? Is il not rather positive evil
dence as to tho state of the track The preponder
ance Of testimony 10 therefore clearly to fhe effect
that at the time Of the accident the rails and track
at the point in question were in good order.
DOW come to the question, IL the company liable
simply be cause their track their rails caused the
inJur, It is shown In proof that toe track was
laid in 1851 by the track master, under the supper
vision Of the Street Commissioned and that It was
done in good and substantial manner. The de.
PENDANTS are company incorporated for the trans
OF passengers and freight over their road,
and for this purpose have obtained permission to lay
their rails vi on aud through the public thorough
fares. This is done as matter of public c0nve-
n'ence, and while the company bound to use all
necessary care and prudence In carrying out their
duties, at the same time those who travel upon and
near their line Of rails are not discharged from the
use of ordinary care and prudence on their part.
On the contrary, Us tho presence Of the track aud
rails ordinarily increases the danger OF travel
in ordinary vehicles, that fact alone calls for
tho exercise of all the prudence and skill of
which they are masters. 1t Is Gs much the duty of
the traveller to avoid dagger is the duty on the
company to protect the public against 1t. Suppose
person in his wagon travelling across or jon Q
railroad sEOuldwrench of his wheel or otherwise dam
age his vehicle (supposing the track to be In good
repair would u Q company be liable? apprehend
not for the simple reason that the traveller knowing
the nature Of the road upon which he was travel
ling, should have guarded With extra care against
accident or damage That the presence q a rail-
road track, and the travel Of railroad cars In .
crowded city, il fraught with certain degree Of
danger, cannot be denied, but the companies prose-
cutting their business under sanction Of tho constitu
authorities, and by virtue of positive legislative
enactment arc protected In their business far az
they oil caution and prueo nce In the discharge
Of their duties TO the community. In this case can
zee nothing in tho evidence which calls upon tho
defendants to respond to the plaintiff legally in
damages, and therefore order judgment for the do
endants with Costs