Edward A. Gott, Respondent, v. The Brooklyn Heights Railroad Company, Appellant

Edward A. Gott, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. Second Department, December 29, 1905. Negligence—injury to hand of passenger riding on car platform.— - failure to show improper construction of car. The plaintiff, a. passenger riding on the platform of defendant's car, had his " hand, which was grasping an upright stanchion, crushed by the coming together of his car with the adjoining car as the train rounded a curve. The ■ negligence charged was defective construction and operation. There was up proof that either car Was broken or defective or that the construction was improper or that any proper guard that would- prevent such accident was lacking. There was no proof'that a similar accident had ever happened or that complaint had ever been made-of the possibility thereof. Reid, that the plaintiff failed to show negligence of defendant; That, upder the proof, the use of cars of such construction was not negligent; That the accident was not the natural and probable result of a condition which could have been foreseen by the defendant. ■ • • Hirschberg, P. J., and Bartlett, J., dissented. Appeal by the defendants the Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plain- ' tiff, entered in the office of the clerk of the county of Kings on the 12th day of January, 1905, -upon the verdict of a, jury for ij>800, and' also from an order entered in said clerkls office on the '30tli day of January,.1905, denying the defendant’s motion for anew trial made upon the minutes. I. R. 0eland [George D. Yeomans with him on. the brief], for the appellant. Willicmn P. Maloney, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The action is for negligence. The plaintiff complains that as a passenger on the platform of the defendant’s car he rested his hand upon an upright stanchion when the train was rounding a sharp curve, and that his car and the forward car came together and crushed his hand. The negligence attributed is defective construction and operation. There is no proof that any part of either car was defective or broke or gave way. There is no proof that the construction of the ears was improper, or that they lacked any guard or device which could prevent or would tend to prevent such an accident. . There is no proof that such a contact from such cars under similar circumstances had ever been known. There is no proof that any accident ever happened from such cause, or that any complaint had ever been made as to the danger or possibility thereof. Therefore, the mere use of such cars with such construction does not justify imputation of negligence. (Lafflin v. Buffalo & Southwestern R. R. Co., 106 N. Y. 136, and authorities cited ; Frobisher v. Fifth Avenue Transportation Co., 151 id. 431.) Further, I think that the accident is not shown, to be the reasonable, natural and probable result of a condition or situation which should have been foreseen by the defendant in the exercise of the care required of it under the circumstances. (Ayers v. Rochester Railway Co., 156 N. Y. 104; Fahner v. Brooklyn Heights R. R. Co., 86 App. Div. 488; McKenzie v. Waddell Coal Co., 89 id. 415.) There was no proof that the running of such cars around this curve at the speed attained (two and one-half to three miles an hour), or at any speed, was likely to result in contact of connected cars. On the contrary, there is evidence, based upon experience and experiments, that such a contact under such conditions between such cars was physically impossible. There was no proof of any lack of due care in the management or operation of this train. I think th'at the judgment and order must be reversed and a new trial must be granted. Woodward and Rich, JJ., concurred; Hirschberg, P. J., and Bartlett, J., dissented. Judgment and order reversed and new trial granted, costs to abide the event. -