Cumming v. Brooklyn City Railroad

If this case was tried without the admission of improper evidence there is no doubt but that the cause of action was fully made out. The defendant on the day in question was running a train of cars made up of a motor and two cars from Port Hamilton to Brooklyn. At the intersection of Twenty-ninth street the train stopped so that, the rear ear overlapped the cross-walk nearest Port Hamilton. It should have stopped at the furthest cross-walk.

The plaintiff’s child, a girl just over five years of age, attempted to cross the street, reached the car and passed around the rear end of it and at the instant of passing the track, going towards Port Hamilton, was run down by another similar train of the defendant. This train gave no notice of its approach. If it had a bell it was an automatic bell, which was proven to be without value when the-*364train was going slow which was the case with this train. It was moreover proven to be without value by the fact that it failed to notify grown persons who were there, of the approach of the train.

The street was largely used by those who passed and repassed. The street was closed to the view of those who stood in the position ■of the girl by the standing train, so that she could not see the .approaching train nor be seen by those who were on it and managing it. The jury could not well find this management ■of its trains was either prudent or safe, nor is the finding that the girl was without fault, to be reversed on appeal. The only question of evidence raised upon the negligence of the plaintiff ■consists in the admission of the city ordinance designating the crossing at which the cars shall stop. There are other sections of the •act which speak of conductors and drivers, and the argument is made that the ordinance referred only to horse cars. The ordinance designating the crossing for cars should not have the restricted meaning claimed for it. It was passed for the convenience and .safety of the citizens who use the streets and should be construed to include all cars whatever the motive power may be. The condition of the plaintiff’s family on the day in question was properly admitted. It bore uj>on the question of the negligence of the mother, if negligence was to be imputed to her, for permitting so young a child to go into the streets. The noiseless approach of the train was properly proven. The general railroad law makes the failure to ring the bell negligence in law if the omission cause an accident. It does not apply to cities; but the fact may be proventhat the failure to ring a bell caused the injury. It tended to prove a failure to use proper care and diligence in managing the train and this, if found by the jury, is with other necessary facts actionable at ■common law. The charge excepted to does not fall within the principle established in Leonard v. Collins (70 N. Y., 94). In that •ease the charge was to the effect that the defendant was liable if he omitted to do “anything that could have prevented the accident.”

In Dyer v. Erie Railway Co. (71 N. Y., 228), the charge was to the effect that the railroad company was bound to give other signals than the statute signals at street crossings. The Court of Appeals while admitting that there might be cases when such a duty would rest upon a railroad; held, that the charge in the case was too broad

*365Another exception is presented to the admission of evidence upon the question of damages. A surgeon testified to the injury. The child’s leg was amputated. The witness testified that the bone would subsequently grow while the flesh which in the amputation was placed over it would not, and that a subsequent operation would be necessary by which the end of the bone would be again cut off. That signs of this necessity were apparent at the time of the trial. The Court of Appeals condemned proof of an injury likely to happen, as speculative and visionary. (Strohm v. N. Y. and Erie R. R. Co., 96 N. Y., 305.) In this case the facts are given and the result premised from the facts with the reasonable certainty that, tbe result would follow from the injury. In the case of Curtis v. Rochester, etc. Railrod Co. (18 N. Y., 534), cited with approval by the Court of Appeals, the charge of the court was sustained, which permitted future damages rendered reasonably certain,, from the evidence to inevitably and necessarily follow from the injury. There is enough proven in this case if credited by the-jury to authorize a finding that a second amputation will be necessary. The judgment should, therefore, be affirmed, with costs.

Judgment and order denying new trial affirmed, with costs.