Citation Numbers: 67 N.Y.S. 805
Judges: Ingraham
Filed Date: 12/31/1900
Status: Precedential
Modified Date: 11/12/2024
Upon the former appeal in this action (48 N. Y. Supp. 352) we held: That the obligation of the defendant in relation to this track upon which it is claimed that the plaintiff was injured was twofold: First, properly to construct it; and, second, after it was so constructed, to maintain it in a safe condition. That, as there was no evidence to show that the track was not properly constructed, or that the plaintiff sustained any injury in consequence of improper construction, the only question was whether the evidence, taken as a whole, was sufficient to sustain a finding that the defendant was negligent in the performance of its duty to maintain this track in a safe condition; and, applying the rule stated in Worster v. Railroad Co., 50 N. Y. 205, and in Schild v. Railroad Co.,
“"When a party alleges the existence oí a fact as the basis of a cause of action or defense, the burden is always upon the party who alleges the fact to establish it by proof. The onus probandi is upon him throughout. In the case at bar the plaintiff made out her cause of action prima facie by the aid of a legal presumption, but, when the proof was all in, the burden of proof had not shifted, but was still upon the plaintiff.”
Assuming that in this case there was evidence to go to the jury that at the moment that this accident happened the rail had in some way become loosened, so that the plaintiff’s foot was caught between the rail and the pavement, and that proof of this fact, unexplained, justified an inference of negligence, we are called upon to determine whether, upon the whole case, the defendant rebutted that presumption so that the court was justified in directing the jury to find a verdict for the defendant. In determining this question it is important to consider the nature of what is alleged to be the unsafe structure. Here was a railroad track laid through a city street paved with stone blocks. There is no evidence-that this track protruded above the surrounding pavement, or that it was in a condition that a casual inspection would disclose the fact that it was out of order. It was not a patent obvious obstruction in the street, as in Worster v. Bailroad Co., supra, nor as in Schild v. Railroad Co., supra, where the rail projected above the level of the street; but, if the plaintiff’s evidence is to be believed, it was a case where the rail had become loose, so that, although apparently perfectly safe, it was possible for a person’s foot to catch in the rail when stepping upon it. There is nothing to show that a railroad company could anticipate that such an accident could happen, or that a person stepping upon a rail of this weight or length could so displace it, even if the spikes had been drawn, and nothing to show that there was anything the matter with the rail at any time before it was discovered by the defendant’s inspector, Sprowl, some time after 11 o’clock in the morning of the day of the accident. Sprowl testified that he was at this corner at half past 10 in the morning; and, although he says he did not at that time look at the track, he stood there seeing the cars come along through Lispenard street, and saw nothing the matter with the track. When he returned to this place about half an hour afterwards,—a little after 11 o’clock,—he then .observed that there were two holes that needed spikes upon the easterly end of the rail. This is the first time that there is evidence to sustain a finding that there was anything wrong with the track. Thousands of persons passed over this track on the day in question, and no one of them was injured, and, so far as appears, no one noticed that the track was out of order, except the defendant’s inspector and the plaintiff. And while it was the duty of the de
It is said that the evidence that the track was repaired shortly after 1 o’clock, and that the agents of the defendant showed due diligence in having it repaired immediately after its condition was discovered, was that of employes of the defendant. But they are facts absolutely uncontradicted, sworn to by intelligent men, whose evidence was unshaken on cross-examination, and against whom there was no charge of negligence. We have on the side of the plaintiff the presumption that arises from the fact that this rail was loose when the plaintiff stepped upon it. No one else ever saw it ■loose. Every other witness who examined and testified about it has testified that it was not loose, but was tight; and then we have uncontradicted evidence that the rail was rendered perfectly secure as soon as it was discovered, and the repair could be made. It seems to me that upon this trial, as upon the former one, any possible presumption or inference that the jury would have been allowed to indulge in from the evidence that the rail was loose when the plaintiff stepped upon it was entirely rebutted by the uncontradicted evidence of every other person that examined the rail at the time, and of the means used to render it safe, so that a verdict charging the defendant with negligence would have been not only against the weight of evidence, but entirely unsupported by evidence. This is not a case where there was evidence to support the plaintiff’s contention, which has been met by a preponderance of evidence, so that the court would be justified in setting aside a verdict as against the weight of evidence, but not justified in directing a verdict for the party in whose favor the evidence preponderated; but a case where, because of a presumption of law, a defendant was called upon to explain a condition that existed in its structure, and so explained it that the presumption which existed was entirely overcome. The jury could have found that the rail was loose when the plaintiff stepped upon it. But, assuming that fact, taking the evidence as a whole, I think the defendant fully met the necessity of an explanation in relation to the condition of the rail, and that a finding in the face of this evidence that the defendant was negligent would be entirely unsupported by evidence.
We have lately had an expression of opinion by the court of appeals as to the nature of the evidence which justifies a court in submitting a question of fact to a jury. In Laidlaw v. Sage, 158 N. Y. 731, 52 N. E. 679, the court quoted with "approval Judge Folger in Pollock v. Pollock, 71 N. Y. 137, where he says: “Insufficient evidence is, in the eye of the law, no evidence;” Maulé, J., in Jewell v. Parr, 13 C. B. .918, where he says: “When we say that there is no evidence to go to a jury, we do not mean literally none, but that
I think the judgment appealed from should be affirmed, with costs.. All concur, except HATCH, J., who dissents.