New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-04-16
Accidents by City Railroad Cnrs.
THE LAW OF NEUTRALITY-SUSPICIOUS. DECISION To
ALL PERSONS USING STREETS OWNED By RAIL

THB LAW OF ACKNOWLEDGEMENTS DEOiStoh ~
ALL PERSONS USING STREETS OWNED By RAIL
ROADS
In the Supreme Court Circuit before Justice 8ockcs,
Friday, Fulton Ferry Railroad Company, the
plaintiff, who Isl a stovedore Was knocked down and
injured by one of the said defendants at the
corner Of Beekman and Water-sts.. to be pre-
vented then from following his business and in
in the Of Michael Kidney agt the Beeckerst ard
yet 10 be incapacitated from continuous work. The
evidence developed the facts that the under
troll at the time of the accident that the plaintiff was
shouted az by both conductor and driver when seen try
ing TO cross and that the was stopped within very
short distance after il that the man would prob
ably be struck. At the termination of the the
sci for the defendant moved for nonsut on the ground
that no negligence appeared on the part of defendant
while negligence shown the part Of the plaintiff.
The Court after nights consideration rendered the fol-
lowing decision:
motion for non-suit was made at the close Of the
proof the part of the plaintiff was then under the
strong impression that the plaintiff had failed to establish
his Of action but concluded II best To hear the
whole granting permission 10 the defendantSto renew
the motion after the evidence all in. The motion for
nou-suit reversed II is the undoubed duty of the
Court to grant the motion in it plainly appears
that verdict for the plaintiff would be unsupported by OF
against the clear weight of evidence.
The facts in tss few and, in the main, unds
pued The plaintiff in crossing the street through which
ran the defendants line of road struck by the horses
of them attached a car and knocked down and
quite seriously injured He was crossing at or near the
Intersection Of streets where there down grade
and struck about Is 20 feet from the lower
walk He he was going directly across the street at
this point but the strength Of the evidence that he
was passing little diagonay. This rfing discrepancy
is however, Of substantial Importance. lilo says ho
looked both ways, but saw no car At tins point an
approaching could be for distance OF two blocks
the accident occurred at midday at the time when there
were pedestrians and vehicles passing; but there
no proof that they II fact prevented the painth
seeing the approach Of the The moving
about the rate OF miles per hour, the horses being on
slow trot. II attended by person other than a
dye whose special duty II was 70 keep watch ahead 20
qallf wi
when about ten feet from the track, approaching 1t
apparently ingttentive and unmlndinl OF danger
lie shouted 10 him, wheroupon the plaintiff started
on run OF tOti ana endeaVOftd 10 cross the track
before the horses. The break Immediately applied
and the stopped but not IN time TO prevent the COLI
by which the plaintiff knocked down passed
over by the horses and dragged moved by the about
three feet Ii also shown that the track at THIS point
and further up the grade was sometimes sanded, when
rendered slippery by rain sprinkiing AT tins time IL
dry and not sanded These are the acts OF ho case
substantially If not entirely they stand clearly proved
lax applicable to this case has been long well settled
The plaintiff had right % cross the street. ana the de
PENDANTS had right pass along II with their cars and
neither would be responsible 70 the other for damages oe
curing By accident m the absence oil All negligence
or wrongful act. In order therefore Ia establish night
Of action in this case enough must be proved To authorize
ury h find from evidence that the injury caused
BY the negligence Of the defendants or thor agents. and
that the plaintiff was free from fault.
First then is there proof sufficient 20 charge the de-
PENDANT with negligence They were engaged ia law
fu employment, and II conducted by the ordinary
and in the usual way. For aught that appears,
every pecauon against accident which could be reason
ably anticipated, o which, the emergency could DO
put in practice exercised and adopted. The lookout
tho proper warning, and u not the defendants
fault b II was not heard and beeded The brakes
immediately applied and were IN good order.
IL does not appear that anything omitted
70 be done, was anything improperly
DONE which the emergency demanded. The most that
can be claimed ground Of negligence is that the car
being at too great rate Of speed through great
thorOughiare Of the city How stands the case on this
pOint9 The proof that the horses wore on slow trot
moving about ~ miles per hour. This was not high
speed there proof that II was unusual even for great
tdoouchfares in the city. Now there anything to show
that Of speed at that particular locality or
on that occasion, improper or dangerous There u no
proof that the way or track was thcn obslcted by
crowd Of vehicles pedestrians For aught that appears
the plsnti the onyporson in the immediate yicin-
tv Of the accident the time. He beyond the sec
ond crosswalk crowd with the street free and open
this point 10 himself and the car at least there Is 10
evidence TO the contrary Certainly there no evidence
that the progress of the DISTRACTED OF that us
speed should then have been reduced below the rate at
whchit had been accustomed % move with entire safety
On the whole j unable % ilsten Oh any act or
on the omission Of any act on the part Of the defendants
their agents which negligence IN law can be larry
or Justly predicated.
Secondly did the plaintiffs negligence contribute 10 the
injury DO not propose elaborate this branch Of the
case all. Still cannot refrain from expressing very
clear conviction that his own lnattenon and care
lessness contributed TO the injury not in fact the sole
cause Of his misfortune II be true, as testified TO- that
instead ofstoppng when warned for the cars 10 pass ne
attempted ahead OF the horses, ms own peIvese
act TO say negigencewas the direct and immediate
cause Of the accident But any view 1t seems 10 me,
he plainly needless of danger He was well acquainted
with the locality and with the fact that cars passed there
yerv frequently True he he looked but did not see
the approaching But the proof does not show that
the view was obstTuCted.
As before remarked If there vehicles and pedest
ans passing usual at that place il does not appear
that there was any crowd Nor IT shown that he was 80
situated in any respect that he could not with due care
and attention have and avoided II.
think the motion for non-suit must prevail. In my
Judgment the proof does not meet the requirements OF
the law in order give night Of action The severity OF
the injury and the fact that the plaintiff is little able to
bear the consequences, induced me to give this motion
more than usual attention at Circuit and feeling sym
pahy for the plaintiffs misfortune led 10 listen at
teutivelv to all the suggestions Of counsel am per-
suaded however that this plaintiff has not made case
which entities him remuneration from the defendants.
Motion 20 non-sut granted.
Mr. r. Suyvesant aud MIR. Peet for plaintiffs Mr. Serb
uer and ex Recorder James M. Smith for defendants