Thomas Jennings, Appellant, v. The Brooklyn Heights Railroad Company, Respondent

Thomas Jennings, Appellant, v. The Brooklyn Heights Railroad Company, Respondent. Second Department, October 23, 1907. Railroad — negligence — pleading. When the complaint in an action to recover for injuries received from the defendant’s car alleges that the defendant had a railroad through a certain street where the plaintiff was injured, which is admitted by answer, there is no presumption that other companies ran cars over the defendant’s tracks, and it is not incumbent on the plaintiff to show that it was the defendant’s car'which injured him. Appeal by the plaintiff, Thomas Jennings, from a judgment of, the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 8th day of March, 1907. ' . Alfred L. Marilley, for the appellant. H. F. Ives, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The allegation of. the. complaint that the defendant had an electric railroad through 39th street for the carrying of passengers having been admitted by the answer, the court below could not presume that some other railroad company also ran its cars over the defendant’s tracks. It was therefore not necessary for the plaintiff to show that the car that hurt him was the defendant’s. That fact, followed from the. fact that the railroad, tracks were the defendant’s. If there was evidence of the cars of another company running over the-defendant’s tracks, the case might be different; but that fact is ■not to be presumed. The presumption is to the contrary, i. e., that the defendant’s possession is exclusive, just as much as the presumption is that my possession of my house is exclusive. There is no presumption that I have let a floor or a room to any one. Mo o.thef company could be running cars over the defendant’s tracks except by its consent (Railroad Law, sec. 102). Its right and po§g§§-;' .sion must at -first have been exclusive, and the presumption is of continuance,' not of change (Lawson on Presumptive Evidence, chap. 8). The judgment should- be- reversed. Hirschberg, P. J., Hooker, Rich and Miller, JJ., concurred. Judgment of the Municipal Court reversed and new-trial ordered costs to abide, .the event..