From Casetext: Smarter Legal Research

Jennings v. Brooklyn Heights Railroad Co.

Appellate Division of the Supreme Court of New York, Second Department
Oct 23, 1907
121 App. Div. 587 (N.Y. App. Div. 1907)

Opinion

October 23, 1907.

Alfred L. Marilley, for the appellant.

H.F. Ives, for the respondent.


The allegation of the complaint that the defendant had an electric railroad through 39th street for the carrying of passengers having been admitted by the answer, the court below could not presume that some other railroad company also ran its cars over the defendant's tracks. It was therefore not necessary for the plaintiff to show that the car that hurt him was the defendant's. That fact followed from the fact that the railroad tracks were the defendant's. If there was evidence of the cars of another company running over the defendant's tracks, the case might be different; but that fact is not to be presumed. The presumption is to the contrary, i.e., that the defendant's possession is exclusive, just as much as the presumption is that my possession of my house is exclusive. There is no presumption that I have let a floor or a room to any one. No other company could be running cars over the defendant's tracks except by its consent (Railroad Law, sec. 102). Its right and possession must at first have been exclusive, and the presumption is of continuance, not of change (Lawson on Presumptive Evidence, chap. 8).

The judgment should be reversed.

HIRSCHBERG, P.J., HOOKER, RICH and MILLER, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered costs to abide the event.


Summaries of

Jennings v. Brooklyn Heights Railroad Co.

Appellate Division of the Supreme Court of New York, Second Department
Oct 23, 1907
121 App. Div. 587 (N.Y. App. Div. 1907)
Case details for

Jennings v. Brooklyn Heights Railroad Co.

Case Details

Full title:THOMAS JENNINGS, Appellant, v . THE BROOKLYN HEIGHTS RAILROAD COMPANY…

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

Date published: Oct 23, 1907

Citations

121 App. Div. 587 (N.Y. App. Div. 1907)
106 N.Y.S. 279

Citing Cases

Moore v. Coney Island Brooklyn Railroad Co.

The presumption is to the contrary, and it was not incumbent upon the plaintiff to show that the dirt train…

Meschneck v. Brooklyn, Queens County S.R.R. Co.

And there was no proof that the defendant corporation had the exclusive occupancy of the new or Williamsburgh…