Charles Schnell, Appellant, v. The Metropolitan Street Railway Company, Respondent

Charles Schnell, Appellant, v. The Metropolitan Street Railway Company, Respondent. Negligence—injury from driving over a loose rail of a street railway — prima facieevidence of the railway company’s liability therefor. The complaint in an action to recover damages for personal injuries alleged that the defendant operated various lines of street railway in the city of New York, one of which lines ran through Avenue A, between East Nineteenth and East Twentieth streets; that the plaintiff, while lawfully driving on said Avenue A, between East Nineteenth and Bast Twentieth streets, upon and across the defendant’s railway track, was injured in consequence of a loose rail. The-answer expressly admitted that the defendant operated the street railway line-on Avenue A, between East Nineteenth and Bast Twentieth streets, but denied, that the tracks were in a dangerous condition, The evidence established that, on Avenue A, between East Nineteenth and East Twentieth streets, there-were double tracks, and that a rail in the down track had been loose and in a dangerous condition for at least a week before the accident, and there was no proof that any other company than the defendant operated a street railway line upon the block in question. Neld, that in the absence of a denial in the answer of the allegation in the complaint of the defendant’s ownership of the tracks, that fact must be regarded as admitted, and that it was error to dismiss the complaint upon the ground that the proof failed to show that the defendant was prima fac-ie liable for the-defective condition of the track. Appeal by the plaintiff, Charles Schnell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25th day of April, 1899, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial before the court and a jury at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 25th day of April, 1899, denying the plaintiff’s motion for a new trial made upon the minutes. John Vernou Bouvier, Jr., for the appellant. Charles F. Brown [Henry A. Bobinson with him on the brief], for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The complaint was dismissed because the proof failed to show in the opinion of the learned trial justice that the defendant was liable prima facia for the defective condition of the track. The proof did show that on Avenue A, between East Nineteenth -and East Twentieth streets there was a single line of double tracks, and that a rail in the down track had been loose and in a dangerous condition for at least a week before the accident. There was no proof that any other company than the defendant operated a street railway line on the block in question. The complaint alleged that the defendant was engaged in the operation of various lines of street railway in the city of New York, one of which lines runs through Avenue A between East Nineteenth and East Twentieth streets; that it was its duty to keep the rails and tracks of its said railway lines in good order and repair; that the rail in question, owing to defendant’s negligence, was loose on the day in question; and that the plaintiff was injured in consequence of the loose rail while lawfully driving a wagon on said Avenue A, between East Nineteenth and East Twentieth streets, upon and across the railway track owned and maintained by defendant. The answer expressly admitted that the defendant did operate the street railway line on Avenue A, between East Nineteenth and East Twentieth streets, but denied that the tracks were in a dangerous condition. The answer contained no other denial material to the point under consideration. We think the ownership of the tracks by the defendant under the allegations of the complaint and in the absence of a denial must be regarded as admitted, and that it was, therefore, error to dismiss the complaint. Judgment and order reversed and new trial granted. All concurred. Judgment and order reversed and new trial granted, costs to abide the event.