Citation Numbers: 97 A.D. 133, 89 N.Y.S. 669
Judges: Hooker
Filed Date: 7/15/1904
Status: Precedential
Modified Date: 1/13/2023
The plaintiff was nonsuited. Her evidence tended to show that while a passenger upon one of defendant’s open cars a fuse, used in connection with the electrical appliances, blew out, and a ■ blaze enveloped 'the front of the car. Many of the passengers shouted, and the plaintiff, standing up in her seat to ascertain the cause of the commotion, became frightened, and in the melee was pushed and . thrown from the car to the street- by which she sustained serious injuries. . The case presents facts so nearly similar to those disclosed in Dorff v. Brooklyn Heights Railroad Co. (95 App. Div. 82; 88 N. Y. Supp. 463) that we should be content to direct a reversal upon the authority of that case and the cases there Cited in the opinion written by Mr. Justice Woodward were it not for the question of pleading raised upon the trial. The complaint alleges that “ owing' to the careless and negligent management of said car by defendant in putting oh too heavy a current or voltage of electricity a certain weak and insufficient fuse supplied and'made use of by the defendant, suddenly exploded with a loud report, setting free a heavy current of electricity whereby said car was, as plaintiff is informed and! believes, set on fire, and a large flame of tire and cloud of- smoke giving forth flames of burning material involved said car,” by reason of which the passengers became terrified and the plaintiff, thinking herself in peril, tried to escape, when she was by the violence of the crowd forced to the street and injured. - The complaint also alleges that the defendant failed suitably and properly to guard against such an occurrence by inclosing the fuse so that its explosion woul(l not-alarm and terrify the passengers and so as to prevent a conflagration of the car. Upon the trial, after proving facts which in the Dorff case and the cases therein cited were held sufficient to present a question for the jury, the plaintiff attempted to prove that the accident was the result of careless and negligent management of the car, but in this she palpably failed, and the learned court refused to submit the case to the jury on the ground that the allegations of the complaint were not sufficiently broad to allow .the subr
While the requests to amend the complaint were not expressed as definitely as might be desired in regard to the particulars of the amendments sought, yet we believe no misunderstanding existed on the trial in view of the actual requests made, and in view of what took place there as to the particulars in which it was sought to remodel the pleading, and our opinion is that the court erred in refusing to grant the permission. The mere allegation that the fuse blew out and by reason thereof fire and flame proceeded from various parts of the car, which threw the passengers into violent commotion and resulted in plaintiff’s injury, was enough to throw the burden of explaining the cause of the accident upon the defendant. Nor would the defendant have suffered in the slightest degree by such an amendment. Section 723 of the Code of Civil Procedure provides in part as follows: “ The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an
The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed and new trial granted, costs'to abide the event.