Ross v. Metropolitan Street Railway Co.

Patterson, P. J.:

Both defendants appeal from a judgment recovered against them in an action for damages for personal injuries alleged to have been sustained by the respondent through their negligence in maintaining a ráilway track and a roadway immediately adjoining such track in an unsafe and dangerous condition to pedestrians crossing the same. • ‘ •

It appeared in evidence .that at about midnight on January 17, 1897, the plaintiff was crossing Tenth avenue at the crosswalk of Little Twelfth street in the city of New York. While so crossing he stepped on the railway track on Tenth avenué and his foot slipped into a hole or rut in the crosswalk adjoining the rail and went under the flanges of the rail; his leg was twisted and he was thrown to the ground in such a manner as to fracture the leg between the ankle and thei knee. <

It was claimed by the plaintiff that the defendants were each of them domestic corporations, controlling and operating cars upon rails laid in the__ public highway on Tenth avenue; that each had .supervision over the .rails and was under legal obligation to keep the same and the highway near and immediately adjoining such rails in good repair and safe condition; that the defendants and each of them neglected so to maintain and keep the rails and liigh- ' way in a safe condition and as a consequence of the unsafe condition of the rails and of the highway under them the plaintiff was injured. The plaintiff recovered a verdict against hath defendants for the sum of $15,000, which was reduced at the trial to $9,000, and from the'judgment entered upon the verdict and from an order denying a motion for a new trial both defendants appeal.

This is the second appeal in the action. Upon a former trial (104 App. Div. 378) it appeared in evidence, and indeed the whole claim made was, that the cause of the accident from which the plaintiff suffered injuries was the existence of the hole in the crosswalk into which his foot slipped. It was held that neither of the defendants was liable for negligence in allowing the highway adjoining its tracks to remain in an unsafe condition. In the opinion of the court on that appeal however, it was suggested that if the injury sustained by the plaintiff had been caused by a defect in the track itself, or any appliance for the use of the road that had been constructed by either of the defendants in a public street, or because such structure or appliance had become out of repair and dangerous, there would then be a cause of action against the corporation which had laid the track or built the structure. On the trial from which the pending appeal is taken, the plaintiff introduced evidence to conform to that suggestion and it was shown that the westerly rail upon which the plaintiff slipped was worn and abraded and in consequence of that defective condition his foot slipped into the hole and was caught under the track and he fell, and as he fell his leg snapped and was broken.

There is nothing in this record to indicate that the Metropolitan Street Bailway Company had ,any other relation to the track or roadway than that which was the subject of consideration on the former appeal. It is not shown that the Metropolitan Street Bail-way Company'was responsible for a' defect in the track or that it did anything more than use the track and it is not proven that it was under obligation to keep it in repair or had- the right to interfere with it. So far as the Metropolitan Street Bailway Company is concerned, the judgment must be reversed, with costs.

A different question, however, is presented as to the liability of the other defendant. There is ample evidence of the fact that the rail on which the plaintiff slipped was in an unsafe condition.. It is true that on the first trial no reference was made in the testimony to that condition, but it is alleged in the complaint that the most westerly rail on the downtown track was maintained in such an unsafe and improper condition that the said rail was raised and the highway depressed adjoining said rail and that the heel of the plaintiff’s shoe wás caught under the rail as he slipped into the hole, which facts were fully proven on the second tidal. It was evidently ■with reference to those allegations of the complaint that the suggestion abode referred to in the opinion on the former appeal concerning the liability of the defendants or either of them was made. It is intimated that the testimony may have been the product of that suggestion of the court ; but on the trial the judge presiding expressly charged the jury that the fact that the plaintiff and his witnesses did not testify at the first trial as to any alleged defect in the rail, and the probability that they may have given such testimony in order, to fit the requirements of the case might be considered as affecting their credibility. . ' .

The unsafe condition of the rail was not testified to by the plaintiff alone, but by other witnesses as well. The complaint was. evidently drawn with relation to such a situation. ,Counsel on the first trial undoubtedly relied upon the condition of the street and the duty of the defendants to maintain it in a safe condition'as sufficient, to impose liability upon them. As the subject of credibility of the Witnesses was fully laid before the jury and as strongly as requested by counsel, we cannot disturb the .verdict on the ground that the aspect in which the case was last presented was a mere afterthought and subterfuge. We, therefore, think that there was sufficient evidence to sustain a verdict against the New York Central and Hudson River Railroad Company. It is plain, upon they whole evidence, that the jury took a most exaggerated' view of the nature of the. injuries sustairied by the plaintiff and ,of what would be sufficient compensation to him. As stated, they returned a verdict of $15,000, which the judge directed should be reduced to $9,000. On. the first trial the plaintiff recovered a verdict of $5,000, .which was quite adequate as compensation. The verdict, even as reduced to $9,000, was grossly excessive,, and the judgment must be reversed and a new trial ordered unless plaintiff stipulates to- redúce it. furthér and to $5,206.20, and if such stipulation is given the judgment Will be affirmed against the New York Central and Hudson. River Railroad Company at that amount, without costs to either party on this appeal.

The judgment against the Metropolitan Street'Railway Com-pony and the order denying its motion for a new trial will be reversed and a new trial ordered as to it, with costs to said appellant to abide the event.

Houghton and Scott, JJ., concurred; Ingraham and McLaughlin, JJ.; dissented.