Opinion
December, 1905.
Henry A. Robinson (Bayard H. Ames and E. Merriam Bagg, of counsel), for appellant.
Joseph M. Davis, for respondent.
The plaintiff, when standing on the rear platform of the defendant's street car, was struck by the brake handle and injured, the motion of the brake handle having been caused by the rebound of the rear fender of the car, which had fallen to the street through the dislodgment of a nut whereby it had been attached to the car.
It was competent for the jury to find that the loosening of this nut was the proximate cause of the injury, and, since the nut had a necessary purpose in holding the equipment of the car together, the fact that it became loose and failed of its purpose justified an inference that it had not been properly secured in place — an omission which touched the defendant in its duty of care toward its passengers, since an insecure condition of the fender, with the car in motion, was reasonably to be deemed dangerous to passengers on the platform.
Within the rules applicable to cases of this kind, therefore, a cause of action was apparent; and the proof warranted a recovery unless the jury should accept as sufficient the defendant's evidence of its system of inspection, which they were not bound to do. Palmer v. D. H.C. Co., 120 N.Y. 170.
The case of Kelly v. New York S.B.R. Co., 109 N.Y. 44, relied upon by the appellant, had to do with the proof necessary to sustain an action where the passenger's injury was due to a fall caused by catching her clothing in a broken hook of a window shade, and it was held that the defect was not sufficiently dangerous to require inspection and correction in avoidance of such an accident.
The circumstances of the accident in the case at bar involved an omission of care in the operative means of conveyance, and for the reasons stated in the Palmer case (at p. 177), the Kelly case is clearly distinguishable.
SCOTT and MACLEAN, JJ., concur.
Judgment and order affirmed, with costs.