Citation Numbers: 57 Misc. 651
Filed Date: 2/15/1908
Status: Precedential
Modified Date: 1/12/2023
The action is for damages to plaintiff’s horse and carriage, by reason of a collision with one of defendant’s cars. Plaintiff’s horse and wagon were in charge of one Curren, who testified as follows: “ Q. And what took place then ? A. He (the motorman) says, ‘ I can’t wait for -you all day ’ and he gave his brake and started on and threw me out of the-way. Q. Where did the car hit you then? A. The car hit the side of the fender, and crushed the wheel, a .front wheel, yes the front left-hand wheel.” He afterward testified that the motorman said: “ I can’t wait for you ull day ” and -released his brake. The court, in overruling the defendant’s motion to dismiss the complaint, said: “ He (Curren) has testified that he (the motorman) struck twice. He does not say how much he was hurt the first time; but, after the second blow, he says his wagon was injured, as shown by Mr. Benjamin and others. As I take it, he is suing for that second blow, when the motorman told him, as he claimed, ‘I haven’t time to wait for you ’ and struck him again. If he was on the track' and the motorman could have avoided the accident., he should have done so. That is the point in the case. I will overrule your motion.” In his charge to the jury, the learned judge said: “He,
Present: Gildersleeve, Seabury and Gerard, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.