Brand v. Borden's Condensed Milk Co.

Willard Bartlett, J.:

This suit was brought by a father to recover damages for the loss of the services of his infant daughter on account of personal injuries sustained by her while a passenger on one of the cars of the Brooklyn Heights Railroad Company. Her testimony and that of two disinterested witnesses who were also passengers in the car showed that some object collided with the car, striking the second window from the rear and breaking the glass thereof, which fell upon the plaintiff’s daughter and cut her knee. Immediately after the collision a horse attached to a wagon was seen running through the street, without any driver but pursued by a man on foot. The horse and wagon were subsequently brought back to the place where *190 the car stood, and the name of the defendant corporation was-observed to be upon tlie wagon. One of the passengers in the car identified the wagon which she saw “running away” as the same one which was -brought back. The same witness testified that she had seen the wagon standing in the street before the crash, but she did not observe whether there was any person upon the wagon at that time or not. It further appeared, however, that there was no other wagon except the one thus identified in the part of the street where the accident occurred at the time when it happened.

In the opinion of the learned Municipal Court judge directing the dismissal of the complaint, he says that no one saw the wagon collide with the car or saw it before the collision took place as far as he was able to discover from the testimony, It is true that no witness was-called who actually saw the collision, The occurrence of a collision, however, may often be inferred from the circumstances of a case, even though ho one can be found who observed the colliding bodies-at the moment of impact. Here the proof strongly indicated that, there was not anything else with which the car could possibly have come in contact except the wagon bearing the name of the defendant. The learned trial judge was mistaken in saying that no one saw the wagon before the collision took place. Mary Coccaro distinctly swore that she saw it before- the crash took place. He was also mistaken in saying that not the slightest testimony had been adduced to show that the horse attached to the wagon was unattended by a driver. The same witness testified that there was no man in the wagon as it went down street, but that a man was following it. This was some evidence at least from which the conclusion could be drawn that the horse had been left, unattended in the street; and to leave a horse thus unattended is prima facie an act of negligence. (Pearl v. Macaulay, 6 App. Div. 70.) In my opinion the proof was ample to warrant a finding that a horse and wagon belonging to the defendant, left unattended in the public street, had collided with the car in which the plaintiffs daughter was a passenger, and broken one of the windows thereof in such a manner as to inflict injury upon her. The fact that the second window from the rear of the car was struck tended to show that the persons in charge of the car could not have been wholly responsible for the collision, but that it must have been due in part to the dangerous movement of the *191 colliding wagon. Upon the uncontradicted proof which I have reviewed I think it was error to dismiss the complaint on the merits. In my opinion the judgment should be reversed.

Woodward, Hirschberg, Jenks and Hooker, JJ., concurred.

Judgment of the Municipal Court reversed, and new trial ordered,, costs to abide the event.