Fisher v. Union Railway Co.

Full title: ANNA FISHER, Respondent, v . UNION RAILWAY COMPANY OF NEW YORK CITY…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 1, 1903

86 App. Div. 365 (N.Y. App. Div. 1903)

83 N.Y.S. 694

Opinion

July Term, 1903.

W.J. Townsend and Henry A. Robinson, for the appellant.

Charles Pope Caldwell [ Maurice E. Connally with him on the brief], for the respondent.

Present — GOODRICH, P.J., BARTLETT, WOODWARD, HIRSCHBERG and JENKS, JJ.

HIRSCHBERG, J.:

The plaintiff was injured while a passenger on one of the defendant's cars, which was run through a dense fog into a wagon on the track ahead of it. There was evidence that the car was running at the time as rapidly as fifteen miles an hour. The only exceptions taken by the defendant were to the refusal of the learned trial justice to nonsuit the plaintiff, and to the evidence referred to as to the speed of the car.

Neither exception is availing. As to the first it is urged that there was no negligence established, inasmuch as the motorman according to his evidence discovered the peril as soon as possible and did everything in his power to avert the collision. This argument overlooks the fact that his credibility was a proper consideration for the jury. Moreover, the negligence asserted consisted in the speed of the car under foggy conditions, but for which the peril even if not sooner discovered might have been successfully averted. The question was submitted in a charge which was favorable to the defendant, and which included every request made by it.

The witness who testified to the speed of the car was a passenger on the occasion in question, a civil engineer of eleven years' experience, at one time connected with the railroad business and accustomed to time the speed of cars by the watch. That such a person was competent to testify to the speed of a car has been frequently held, among other cases, in Salter v. Utica Black River Railroad Co. ( 59 N.Y. 631); Northrup v. New York, O. W.R. Co. (37 Hun, 295, 299); Scully v. New York, L.E. W.R.R. Co. (80 id. 197); Strauss v. Newburgh Electric R. Co. ( 6 App. Div. 264); Penny v. Rochester R. Co. (7 id. 595), and Garduhn v. Union Railway Co. (50 id. 602).

The damages cannot be regarded as excessive, notwithstanding that there was no proof of permanent injury.

The judgment and order should be affirmed.

HIRSCHBERG, J.:

Judgment and order unanimously affirmed, with costs.