Alfred Manahan, an Infant, by Guardian, Respondent, v. The Steinway and Hunter's Point Railroad Company, Appellant

Alfred Manahan, an Infant, by Guardian, Respondent, v. The Steinway and Hunter’s Point Railroad Company, Appellant. (Argued January 28, 1891; decided February 24, 1891.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 18, 1890, which affirmed a .judgment in favor of plaintiff entered upon a verdict, and affirmed an order denying a motion for a new trial. This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant. Plaintiff, a boy twelve years old, was run over by one of defendant’s cars while' attempting to cross its track. Plaintiff testified that he looked and saw the car, which was known as a bobtail car and had no conductor, and had time to cross the track. At the time of the accident the driver was engaged in expelling from the rear platform a gang of lawless boys who had hung around for several blocks, and once, by their accumulated weight on the back part of the car, thrown it from the track. The only suggestion of negligence on defendant’s part was that the driver accelerated the motion of the car just as plaintiff was crossing the track. A.competent man, a passenger, who was driving at the request of the regular driver, was called as a witness by plaintiff, and he was not asked whether he whipped up the horse. Neither plaintiff nor two boys, who were called to corroborate him, swore that the horse was whipped up or the speed accelerated after plaintiff attempted to cross the track, and there was no testimony to that effect. Defendant’s counsel asked the court to charge that there was no evidence that the speed of the horse was increased. The court declined so to charge and submitted the question to the jury. Held, error. George W. Stephens for appellant. Lcmton & Neu for respondent. [MAJORITY — Ruger, Ch. J.,] Ruger, Ch. J., reads for reversal and new trial. AH concur. Judgment accordingly.