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and 140 New York State Reporter tion, the driver was not negligent in failing to continuously watch the car until he had passed over the crossing.
[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Street Railroads, $ 214.] Appeal from Municipal Court of New York.
Action by William J. McGurgan against the New York City Railway Company. From a Municipal Court judgment dismissing the com
a plaint, plaintiff appeals. Reversed, and new trial ordered.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.
Edwin V. Guinan, for appellant.
HIRSCHBERG, P. J. The judgment appealed from is one of nonsuit; the complaint having been dismissed at the close of the plaintiff's case. The action is for damages for injuries alleged to have been occasioned by the defendant's negligence. On the 26th day of February, 1906, at 8 o'clock in the morning, the plaintiff was being driven in a top buggy up Broadway, in the borough of Manhattan. The top was up, and the plaintiff was accompanied only by his driver. When they reached Thirty-Fourth street, both he and the driver observed one of the defendant's cars standing on the west-bound track in ThirtyFourth street, at the east crossing. The car being stationary, they proceeded to cross the tracks in Thirty-Fourth street, and when they were within six feet of the west-bound tracks the car was started up without any warning, so that it ran into the plaintiff's horse and buggy, striking the right hind wheel of the vehicle and throwing the plaintiff over the dashboard.
The negligence of the defendant is undisputed. It cannot be pretended that to run a car into a vehicle in broad daylight at the intersection of streets, without sounding a warning or giving a signal of any kind, is the exercise of care. I do not see how, in the circumstances, it can be claimed that the plaintiff was guilty of contributory negligence as matter of law. He was not bound to assume that this car would be started up at his peril. Assuming that the negligence, if any, of the driver, would be imputed to him, there is nothing indicating negligence on the part of the driver. He could not be looking all the time at this car standing east of the crossing on the west-bound track. Some attention was due to the horse which he was driving, and care was also required to see that the east-bound track was free while crossing it.
I think the question of the plaintiff's contributory negligence was clearly for the jury. Nor is any case cited by the learned counsel for the respondent authority to the contrary. In each of the cases relied upon the car was under way and known to the party injured to be in motion. In Lofsten v. Brooklyn Heights R. R. Co., 184 N. Y. 148, 76 N. E. 1035, the car was approaching at the rate of five or six miles an hour. In Furlong v. Metropolitan Street R. Co., 103 App. Div. 215, 92 N. Y. Supp. 1008, the plaintiff saw the car which struck her approaching rapidly. In Hickman v. Nassau Elec. R. Co., 36 App. Div. 376, 56 N. Y. Supp. 751, the gong was sounded with great violence for a distance of more than half a block, and the plaintiff deliberately walked in front of the car. These and other cases which might be cited are distinguishable from the one at bar, and, while it is difficult to find cases in which the circumstances agree, this one is in many respects similar to that of Andres v. Brooklyn Heights R. R. Co., 84 App. Div. 596, 82 N. Y. Supp. 729, wherein we held that it was error for the trial court to dismiss the complaint under circumstances, as I have suggested, practically similar to those now presented.
The judgment should be reversed, and a new trial ordered; costs to abide the event. All concur.
(121 App. Div. 558.)
ROBINSON v. UNION RY. CO. OF NEW YORK CITY. (Supreme Court, Appellate Division, Second Department. October 18, 1907.) STREET RAILROADS-INJURIES TO PERSONS CROSSING TRACKS-CONTRIBUTORY NEGLIGENCE.
Where plaintiff, as he was about to step on a street railway track in crossing a street at night, looked and saw a car which was approaching at a medium rate, 60, 75, or 80 feet away, and as he got to the middle of the track looked again, and the car was so close that he jumped, but was bit before he could get off the track, and there was nothing to prevent him from seeing the car all the time, he was not entitled to recover, it being an impossibility for him to have been struck unless he negligently remained in the way; and this was so, though the car's headlight may have gone out as the car was approaching and then lighted up again.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 207.) Appeal from Trial Term, Queens County.
Action by William Robinson for personal injuries against the Union Railway Company of New York City. Judgment for defendant, and plaintiff appeals. Affirmed.
Argued before HIRSCHBERG, P. J., and WOODWARD, MILLER, and GAYNOR, JJ.
Archibald Foote Clark, for appellant.
GAYNOR, J. The best phase of the testimony of the plaintiff and his witnesses is that he was walking across Third avenue in Bronx borough near 180th street in the middle of the block after dark; that as he was about to step on the uptown track (the first he reached) he looked south and saw a car approaching at a medium rate of speed 60, 75, or 80 feet away; that as he got to the middle of this track he looked again and the car was so close that he jumped back but was hit before he could get off the track and lost a leg. There was no other vehicle in the vicinity, and nothing to prevent the plaintiff from seeing the car all the time. Having seen the car that distance away as he was stepping on the track, it was impossible for him to be struck by the car by the time he got to the middle of the track unless he negligently remained in the way. One witness says the headlight and 140 New York State Reporter went out as the car was going the said distance and then lighted up again; but if this be believed it makes no difference for the plaintiff says he saw the car.
The judgment should be affirmed.
Judgment unanimously affirmed on reargument, with costs. All concur.
(121 App. Div. 542.)
WOOD V. LUKE A. BURKE & SONS.
(Supreme Court, Appellate Division, Second Department. October 18, 1907.) MASTER AND SERVANT-ACTION BY SERVANT FOB INJURY-INSTRUCTIONS—MagTER NOT AN INSURER.
In an action by a servant, a bricklayer, for an injury sustained by being struck by an object falling from an upper part of the building, where the court has instructed as to the duty of the master to furnish plaintiff a safe place to work, it is error to refuse to instruct that the master is never the insurer of the safety of a workman on a building.
Appeal from Municipal Court, Borough of Queens, First District.
Action by Percival J. Wood against Luke A. Burke & Sons. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.
Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.
Allan E. Brosmith, for appellants.
George F. Hickey (William E. Stewart, on the brief), for respondent.
PER CURIAM. The action is by servant against master for negligence. The plaintiff, while at work as a bricklayer in a building in the course of construction, was struck by a falling thing from the upper part of the building and injured. The alleged negligence is that the master failed to furnish a safe and proper place for the servant to work in, and that the servant was put at work in a place not properly protected against the fall of such things. The Municipal Court was requested to charge the jury that the master is never the insurer of the safety of a workman on a building, and the court declined so to charge, under exception. While the request was general, we cannot say that it was not germane, especially in view of the fact that the court had already charged the jury that it was the duty of the master to give the employé a safe place to work in. We cannot say that the effect of such a charge was not to struct the jury that the master was held to a higher rule of liability than that imposed upon him by law.
For these reasons, we think the judgment must be reversed, and a new trial ordered; costs to abide the event.
(55 Misc. Rep. 5.)
In re HOULIGAN.
(Supreme Court, Special Term, St. Lawrence County. June, 1907.)
1. ELECTIONS-Ballots-STATUTORY PROVISIONS.
Where the names of the nominees of a Citizens' ticket for school commissioners placed on a ballot pursuant to Laws 1906, p. 1374, c. 495, legislating out of office the board of school commissioners, and providing for the election of new commissioners on the same ballot as other city officers, were put in the same column with the socialistic labor ticket, in violation of Election Law, Laws 1896, p. 933, c. 909, § 81, requiring the printing of each ticket in a separate column, the error was one to which objection should have been made before election.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Elections, § 150.]
False markings in relation to a Citizens' ticket for school commissioners, placed on a ballot pursuant to Laws 1906, p. 1374, c. 495, legislating out of office the board of school commissioners, and providing for the election of new commissioners on the same ballot as other city officers, render the remainder of the ballot invalid, since that ticket being on the same ballot and voted at the same election with the state and city tickets, it must be regarded as subject to the same rules and regulations.
8. SAME-COUNT OF VOTES.
Under the express provisions of Election Law, Laws 1896, p. 963, c. 909, § 111, election inspectors are without right to reject ballots marked in such a manner as to indicate that the marks were made for the purpose of identification, but they must count the same and return such ballots indorsed with the words, "Protested as marked for identification."
4 SAME-IRREGULARITIES AND ERRORS.
Election Law, Laws 1896, p. 955, c. 909, § 105, providing that it shall not be lawful to make any mark on an official ballot other than an X mark, made for the purpose of voting, with a pencil having a black lead, and that only in the circles or in the voting spaces, and rule 7, subsec. 2, of that section, providing that one straight line across another straight line at any angle within a circle or within the voting spaces shall be deemed a valid voting mark, are not complied with by the placing of the crossing point or intersection of the lines within the circle, if any of the lines run outside of the circle.
[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Elections, §§ 151, 152, 154, 166, 167.]
Under Election Law, Laws 1896, p. 955, c. 909, § 105, subd. 2, providing that, if a voter desires to vote a split ticket, he must not place an X in the circle above the name of any party, but must make an X in the voting space before the name of each candidate for whom he desires to vote, a ballot whereby a voter attempted to vote a split ticket on which X marks for individual candidates are not within the voting spaces is void.
[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Elections, §§ 151, 154, 166, 167.]
Under Election Law, Laws 1896, p. 955, c. 909, § 105, providing that it shall be unlawful to deface or tear a ballot or to erase any printed device, figure, or word therefrom, a ballot on which a voter erased the name of a candidate printed thereon is void.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Elections, §§ 151, 156, 166, 167.]
Under Election Law, Laws 1896, p. 955, c. 909, § 105, declaring it unlawful to deface or tear a ballot or to erase any printed device, figure, or word therefrom, or to erase any name or mark written thereon by a voter, a ballot on which an unauthorized mark has been made by the voter, which he after ards tried to erase, is void.
[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Elections, §§ 151, 156, 166, 167.]
and 140 New York State Reporter
Under Election Law, Laws 1896, p. 955, c. 909, § 105, subd. 2, rule 4. providing that, if a voter desires to vote for any person whose name does not appear on the ballot, he can do so by writing the name in a proper place in the blank column, a ballot on which the voter wrote the name of a person for whom he desired to vote in some other column than the one designated on the ballot for that purpose was void.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Elections, §§ 151, 166, 167.]
Under Election Law, Laws 1896, p. 955, c. 909, § 105, declaring the rules which shall be observed in marking ballots, a ballot marked on its back and not on its face is void.
[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Elections, §§ 151, 166, 167.]
Under Election Law, Laws 1896, p. 961, c. 909, § 110, subd. 2, rule 1, providing that if a voter marks more names than there are persons to be elected to an office, or if for any reason it is impossible to determine his choice, his vote shall be returned as a blank vote, a ballot marked in the circles of several different tickets, each containing nominations for all offices of the ballot, is void.
[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Elections, §§ 155, 160, 166, 167.]
11. SAME-COUNT OF VOTES.
Under Election Law, Laws 1896, p. 962, c. 909, § 110, subd. 2, rule 6, providing that where a voter places an X in more than one circle at the head of party tickets, and on either of such tickets there shall be one or more candidates for office for which no other candidate or candidates is or are named on such other ticket or tickets so marked in the circle, his vote shall be counted for such candidate or candidates, a ballot marked in the circle of two tickets, both having candidates for state and county offices, but only one for city offices, was properly counted for the city offices.
[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Elections, §§ 155, 160.]
Mandamus by James J. Houligan to the board of canvassers of St. Lawrence county, requiring a judicial examination of certain ballots, rejected by the inspectors of election as void, and for a count of such ballots. Finding for respondent.
Hale & Adams (George R. Malby, of counsel), for relator.
SPENCER, J. This is a judicial investigation of alleged void ballots cast at the annual election held in the city of Ogdensburg on the 6th day of November, 1906. The inspectors of election of district No. 1, in the Third Ward, returned 18 ballots uncounted as void, and the inspectors of district No. 2, in the same ward, returned 21 ballots un