Honora Coulahan, Appellant, v. Metropolitan Street Railway Company, Respondent

Honora Coulahan, Appellant, v. Metropolitan Street Railway Company, Respondent. negligence—a passenger in an open street ear injured by'a truck horse which, when struck by the car, jumped in upon her — inference that the horse was on the track and that the car driver negligently attempted to pass him. In an action to recover damages for injuries occasioned, by the alleged negligence of the defendant, a street railway company, the plaintiff testified that she was a passenger in an open car of the defendant, which passed a truck, but struck the horse attached thereto, and that the horse thereupon jumped and sprang into the car and sat down on the plaintiff, causing her very serious injury, but she gave no reason why the car, which had without difficulty passed the truck, should have struck the horse, other than to state that the truck was near the track, while the horse stood on the track. Held, that the case should have been submitted to the jury, as they might have ■ inferred that the horse when struck was on the track and that the driver of the car negligently attempted to pass him while So standing there.. Appeal by the plaintiff, Honora Coulahan, from- a judgment of the Supreme Court in favor óf the defendant, entered in. the office of the clerk of the county of New York on the 8th day of July, 1897,. upon the dismissal of the complaint by direction-of the court after a trial at the New York Trial Term. William J. Leitoh, for the appellant. John T. Little, Jr., for the respondent. [MAJORITY — Rumsey, J.:] Rumsey, J.: The action was brought for damages for personal injuries which the plaintiff claims to have received while a passenger in a street car upon one of the defendant’s railways. No evidence was given on the part of the defendant, but the complaint was dismissed at the close of the plaintiff’s case. As stated by the plaintiff she was a passenger in an open car of the defendant, riding along on Fifty-ninth street easterly. Near the corner of Third avenue and Fifty-ninth street a truck, with a horse or. horses attached, was standing in the street by the side of the track. The plaintiff was sitting on the same side of the car as that on which the truck and horse stood. She said that the car passed the truck but struck the horse, whereupon the horse began to jump and sprang into the car and sat down on the plaintiff, causing her very serious injuries. • Upon her direct examination she gave no reason why the car which had passed the truck without difficulty should have struck the horse, but upon her cross-examination, when asked how she explained that' apparent discrepancy, she stated that the truck was near the track, but the horse stood on the track. This was substantially all the evidence as to the way in which the accident occurred. The jury might have' inferred from this testimony that the horse was standing upon the track at the time when the driver attempted to pass; and if that be so it was probable that the horse would have been struck, and it would have been proper for them to infer that the attempt of the driver of the car to pass the horse standing upon the track was negligence, and for that'reason it was error to dismiss the complaint, but the case should have been submitted to the jury. The judgment, therefore, must be reversed, with costs to the appellant to abide the event. Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., ■ concurred. Judgment reversed, new trial ordered, costs to appellant to abide event.