thereof, but had not been advised that it was engaged in such work at a par-
ticular place. He had gone over that street the day before, and it was then
in good condition.
Held, in an action brought to recover damages for personal injuries sus-
tained by him by reason of the defective condition of the street, that if the
evidence on his part tended to prove that no suitable precautionary means
were provided to warn persons not to proceed into the place where the
accident happened, the jury was justified in finding that the plaintiff was
free from contributory negligence. Id.
Commissioner of public works of Syracuse-duty as to removing
obstructions from the streets.] The law imposes upon the commissioner of
public works of the city of Syracuse the duty of inspecting from time to
time the streets of such city and of seeing that the same are kept free from
obstruction and in good condition and repair.
BYRNE v. CITY OF SYRACUSE.
When the city is chargeable with notice of the obstruction.] The fact
that an obstruction upon the street of a city was placed there by a surface
railroad company, which had a franchise to operate its road along such street,
does not exonerate such city from liability in an action brought to recover
damages for personal injuries sustained by reason of such obstruction, if the
obstruction had been on such street a sufficient length of time to arrest the
attention of the proper city officials; it is the duty of such city either to
require such railroad company to restore the street to a reasonably safe
condition or to make such restoration itself.
Upon the trial of an action brought to recover damages for personal
injuries, alleged to have been sustained by reason of the negligence of a city
in leaving an obstruction upon one of its streets, it appeared that such
street had been left at the place of the accident in substantially the same
condition for nearly eight months.
Held, that the city had had ample time to make repairs to the same and
was chargeable with notice of the defective condition of such street. Id.
- when properly received in evidence.]
Map of the place of an accident.
In such action a map of the premises in the immediate vicinity of the place
of accident, made by a surveyor, was produced upon the trial, evidence was
given as to the surrounding facts and circumstances in connection with the
same, showing the situation of the street with a cross section thereof, and
testimony was allowed, over the defendant's objection, as to the condition
of the street for a rod or twenty feet either way; the witness also testified:
"This cross section that I give here, 377 feet, is the point that was pointed
out to me by Mr. Byrne (the plaintiff) as the place of the accident. This
is about 22 feet south of the tree, that oak tree, and about 23 or 24 feet
south of the telegraph pole. This point where I made my measurements
was about 50 or 60 feet north of house number 1312, the first house south
For 20 feet either way it is very much the
on the west side of the street.
same as that cross section shown. I observed this particularly."
Thereupon the map was offered and received in evidence over the defend-
ant's objection, "That it is a profile not of the point of the accident as stated
by the plaintiff."
Held, that under the evidence relating to the measurements made by the
engineer and upon his testimony as to the circumstances under which the map
was made which had noted upon it the measurements which he had testified
to, the trial judge committed no error in allowing the map to be received and
used in connection with that testimony. I.
7. Regulations of a railroad company — their reasonableness a question of
law.] Regulations are essential to the proper conduct and management of
the business of any railroad corporation, and, upon a given state of facts,
the question whether or not such regulations are reasonable is one of law
The fact that unforeseen causes may some-
to be determined by the court.
times intervene to produce inconvenience does not necessarily render such
regulations unreasonable or unsuitable, but for such cases provision should
be made so far as practicable.
There may be cases where the disposition of a controversy about the reason-
ableness of certain regulations is dependent upon the determination of
controverted questions of fact, in which case such facts are for the jury to
determine, but the view of the facts which will render the regulations
reasonable is a question of law for the court.
MUCKLE. ROCHESTER RY. Co....
8. -Carrier of passengers - liability for misconduct or neglect of its
servant.] It is a general rule that a carrier of passengers is answerable for
all the consequences which may result to a passenger from the willful mis-
conduct or negligence of the persons employed by it in the execution of
the duty it has assumed towards such passenger, and where a railroad cɔm-
pany has, by its contract with a person, undertaken, for a consideration
paid, to carry him to his place of destination, such person has the right of
passage, and as between him and such company he is at liberty to refuse to
repay his fare and to insist upon having his continuous passage.
If, in violation of the rights of a passenger, a railroad company, by its con-
ductor, proceeds to forcibly eject him from the car in which he is rightfully
seated as a passenger, notwithstanding the fact that the conductor person-
ally may be justified by his instructions in doing so, by reason of the pas-
senger, because of the mistake of another conductor, not having proper evi-
dence of his right to ride on the car, yet the railroad company is no more
justified in the attempted act of ejection than it would be if such passenger
had at the time held and presented the evidence of his right to remain as a
passenger in the car without further payment. Id.
9. · Exemplary damages.] A person will not be permitted to recover
exemplary damages against a master for the act or negligence of his servant,
unless the master has authorized or ratified his servant's misconduct, or unless
the conduct complained of is that of the servant while he is in the service,
after his unfitness for it is shown to the master, and the like rule is applicable,
in an action against the master for the act of his servant, when the latter
would not be chargeable with punitory damages if he were the party defend-
ant. Id.
10. Questions of negligence and contributory negligence are for the jury.]
In an action brought to recover damages for injuries sustained by a person,
who was struck by a car running at a considerable rate of speed, while law-
fully engaged in work upon a street near a track over which horse cars ran, the
question of the defendant's negligence and the plaintiff's freedom from con-
tributory negligence should be submitted to the jury.
MCCOOEY v. FORTY-SECOND ST. R. R. Co..
11. Verdict, when not excessive.] Upon the trial of such action it was
shown that the plaintiff was thrown down in such a position that the wheel
of the car went over his foot, starting at the toes and running off near the
ankle, wrenching the ankle and tearing the heel of the shoe loose. He
remained in the hospital five days and was then taken home and laid up by
the injury a little over four months, during which time he suffered pain and
was unable to use his foot or to work, and during two or three of said months
he was obliged to use crutches. The jury rendered a verdict for the plaintiff
for $1,500.
Held, that such amount was not, under the circumstances, excessive.
12. Evidence as to the surroundings and results of the accident.] In such
an action it is proper to show the surroundings of the accident, and, for that
purpose, to introduce in evidence a map, properly authenticated and proved;
it is also competent to show what results would follow with reasonable cer-
tainty from the injuries received, and, in a proper case, to recover damages
therefor. Id.
13. -
Objection to a hypothetical question.] The overruling of an objec
tion to a hypothetical question on the ground only of its incompetency, will
not justify a reversal of the judgment on appeal on the ground that the ques-
tion did not contain all the facts necessary to enable the expert to answer it
and thus bring them to the minds of the jurors. Id.
14.
Action for personal injuries— duty of a railroad company to its
employees.] It is the duty of a railroad corporation to furnish a reasonably safe
place and appliances for its employees to perform the duties incumbent upon
them. HASKINS v. N. Y. C. & H. R. R. R. Co....
when insufficient
- Absence of blocking on the guard rail of its tracks -
to show negligence on the part of the company.] Assuming that a railroad com-
pany is obliged to block its guard rail for the protection of its employees, it is
incumbent upon an employee, in order to recover damages in an action
brought against such company for personal injuries alleged to have been
sustained by reason of the failure of such corporation to keep its guard rail
properly blocked, to show that such corporation had either actual notice that
the blocking was out of place for such a length of time as would have enabled
it to restore the blocking, or that the blocking had been out of place for such
a length of time as to constitute constructive notice thereof to the railroad
company, where there is no evidence that the blocking was not properly con-
structed in the first place, or that it was displaced through negligence. Id.
16. Quasi corporations — responsibilities of-duty of a county to care
not liable for personal injuries sustained, through its negligence,
for its insane-
by an employee in an asylum maintained by it.] Quasi corporations created
by the Legislature for purposes of public policy are not responsible for the
neglect of duties enjoined on them, unless a right of action therefor is given
by statute, and where a county of the State is engaged in the performance of
duty imposed upon it by statute, to wit, the support and care of its insane,
which is a duty imposed upon every county of the State, it can discharge
such duty, either by employing the State to care for its insane, or by caring
for them itself in an asylum within its own borders. In either case, such
county is discharging a duty imposed upon it by law, and is not liable in
damages for the personal injuries sustained by a person employed in such
asylum, by reason of the failure of the persons in charge thereof to properly
instruct such employee in regard to her duties in respect to certain
machinery therein, through the operation of which she sustained such inju-
ries. HUGHES v. COUNTY OF MONROE.
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absence of contributory
17. Negligent killing-action for damages.
negligence-may be shown from circumstances in the absence of direct proof.]
In an action brought to recover the damages resulting from the death of the
plaintiff's intestate, caused by the alleged negligence of a railroad company,
absence of contributory negligence may be shown from circumstances.
The fact that no one can testify that he saw the deceased look both ways
and listen, before attempting to cross the railroad tracks on which she was
killed, does not necessarily show that she did not do her duty in that regard,
and if the facts and surrounding circumstances shown are such as to reason-
ably indicate or tend to establish that the accident might have occurred with-
out negligence on the part of the deceased, the question of contributory
negligence is to be determined by the jury, although there were no eye
witnesses to the accident.
It cannot be said, as a matter of law, at what particular point before reach-
ing the railroad tracks the deceased should have looked for an approaching
train. PITTS v. N. Y., L. E. & W. R. R. Co....
when a release may be impeached
18. Damages resulting therefrom
without restoring the money paid therefor.] Upon the trial of an action
brought to recover damages for personal injuries alleged to have been sus-
tained through the negligence of the defendant, it was shown that the plain-
tiff had executed a release discharging the defendant from all claim for dam-
ages therefor, at the time of the execution of which the defendant paid
the plaintiff $100.
It was contended by the plaintiff that the execution of such release was
secured by fraud; that the plaintiff understood the $100 to be a present,
and thought she was signing à receipt therefor.
On an appeal from a verdict in favor of the plaintiff,
Held, that under the circumstances the action was maintainable, and
that the plaintiff could impeach the release without first restoring or offering
to restore the $100 which she had received. SHAW . WEBBER..
19. Damages caused by the collision of two vessels-proof of previous
intoxication of the person in charge of one of such vessels is inadmissible.]
Upon the trial of an action brought to recover damages for the death of
the plaintiff's intestate, caused by the collision of two vessels, alleged to have
been occasoned by the negligence of the defendant, the owner of one of
such vessels, it was contended on the part of the defense that the negligence
which caused the collision was that of the owner of the second vessel on
which the plaintiff's intestate was, and proof was admitted of the previous
habits of intemperance of the person in charge of the second vessel at the
time of the collision.
Held, that such proof was improperly admitted.
SENECAL. THOUSAND ISLAND STEAMBOAT Co......
20. Trespass by animals.] A person is answerable, not only for his
own trespass, but also for that of his domestic animals.
21. Proof of negligence — the injury must be the natural and probable
consequence of the act.] In order to warrant a finding that negligence, or an
act not amounting to wanton wrong, is the proximate cause of an injury, it
must appear that the injury was the natural and probable consequence of the
negligence or wrongful act, and that it ought to have been foreseen in the
light of the attending circumstances. Id.
dition of a street, when insufficient.
Charter of the city of Rochester-notice to an official of the defective con-
See SMITH v. CITY OF ROCHESTER.
Right of a surface railroad to the use of its tracks paramount but not
exclusive-duty of the driver of a car.
See WARD v. N. Y. & HARLEM R, R. Co.....
NEGOTIABLE PAPER-Law relating to.
NEW TRIAL- Where a new trial is ordered on appeal from a Court of Spe-
cial Sessions, such new trial under section 768 of the Code of Criminal Procedure
should take place in the Court of Sessions of the county.
See PEOPLE v. LUHRS..
It is the duty of the court to set aside the verdict of a jury founded upon
the disbelief of clear, uncontradicted and undisputed evidence.
See CUNNINGHAM v. GANS.....
Life insurance policy — newly discovered evidence available only for the
purpose of discrediting a witness, is not a ground for a new trial.
See BRADY . INDUSTRIAL BENEFIT ASSN....
Verdict of a justice's jury, not set aside to allow the recovery of nominal
NEW YORK CITY — Dismissal of a police officer for absence without leave
-sufficient excuse therefor.
See PEOPLE EX REL. MITCHELL v. MARTIN...
Aqueduct commissioners not the agents of the city of New York.
See LESTER v. MAYOR, ETC...
NOTARY — The accommodation indorser of a note is not a surety — demand
of payment and notice of non-payment are necessary.
See JAFFRAY . KRAUSS.
NOTICE- Charter of the city of Rochester-proof of notice to an official of the
defective condition of a street when insufficient.
See SMITH v. CITY OF ROCHESTER..
Commissioner of public works of Syracuse-duty as to removing obstruc-
tions from the streets — - when the city is chargeable with notice of the obstruction.
See BYRNE v. CITY OF SYRACUSE....
Order granted under section 3 of chapter 438 of 1884-may be made ex
parte ·may be vacated on notice— notice of hearing thereon may be directed.
See MATTER OF KAROWNEY..
Specific performance of a contract to exchange real estate objections
known when the contract was made are not available.
See JONES v. WITTNER.....
Duty of trustees of a village in regard to its streets -- notice of the defective
condition thereof.
See HOYER v. VILLAGE OF NORTH TONAWANDA....
Purchaser of promissory notes of a corporation — when in no better posi-
tion than the payees, its directors.
See MCCLURE v. LEVY....
Of mechanic's lien.
NUISANCE - Temporary annoyance to an owner of real estate caused by
building on an adjoining lot creates no claim for damages.
See LESTER v. MAYOR, ETC..
OFFICER - Officer de facto what constitutes.] 1. To constitute a person an
officer de facto it is essential that his acts of official character be founded
upon some colorable right to the office, derived from a form of election or
appointment (although by reason of some defect or irregularity the election
or appointment is illegal or unofficial), or that he has acted as such with the
acquiescence of the public for a sufficient length of time to permit the
presumption of an election or appointment, which presumption arises from
the reputation he thus acquires as an officer from such acts, and the acquies-
cence of the public therein.
Under such circumstances, as a matter of public policy, his acts in his appa-
rent official capacity are not subject to collateral attack to the prejudice of
others, and as to them and the public they are deemed effectual and valid. It
is prima facie sufficient to establish the official character of a local officer to
show that he is generally reputed to be and has acted as such.
The mere claim of a person that he is an officer does not relieve his
acts from the character of usurpation and give him the character of an
officer de facto, unless he has openly performed the duties of the office for such
length of time with the acquiescence of the public as to give him the general
reputation in the official district of being what he assumes to be.
2. Word" willfully," as used in section 56 of the Penal Code, defined.]
The word "willfully," as used in section 56 of the Penal Code, means some-
thing more than a voluntary act and more also than an intentional act,
which, in fact, is wrongful; it includes the idea of an act intentionally
done with a wrongful purpose, or with a design to injure another, or one com-
mitted out of mere wantonness or lawlessness.
A person is not guilty of a misdemeanor under such section if he enters
into a public office, to which he has not been duly elected or appointed, under
a bona fide claim of right which he might reasonably believe entitled him to
take possession- but in such case there must be colorable ground for such a
claim. PEOPLE v. BATES..
Of corporations.
See CORPORATIONS.
Of municipal corporations.
See MUNICIPAL CORPORATIONS.
ORAL AGREEMENT:
See CONTRACT.
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