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App. Div.]

First Department, November, 1911.

entire issue, or such issues as he deems to exist, to the jury for their determination.

In the case at bar it is clear that issues of fact had been raised by the testimony and the court was clearly right in so submitting them. It follows, therefore, that the ground assigned for the reversal of this judgment is untenable and we are, therefore, required to consider the other grounds assigned by the respondent in this court as justifying reversal. The first ground is that the verdict was against the weight of evidence. We are unable to say that such is the case. The defendant testified to the making of a contract for the repairs to be made upon his automobile, from which it would appear that the original contract was for the doing of whatever work was required upon the machine at an agreed aggregate price of $400; and that when the work was finished the sum of $816 was finally agreed upon by them as a fair price for the work done in view of its having been more extensive than originally contemplated. This amount the defendant concededly paid. Brokaw was not called as a witness to contradict the defendant; and, accepting the latter's version as correct, the verdict in his favor was justified.

Nor is the objection which was raised to the admission of defendant's conversation with Brokaw well taken. The testimony clearly establishes Brokaw's authority to act for the plaintiff's assignor, for he was the superintendent of the repair shops of the club and his general supervision of affairs therein appears from the testimony of his subordinates. Nor can the plaintiff successfully maintain that Brokaw did not represent it and had no authority to make the contract, for if such was the case it would have no contract whatever with the defendant, whose entire dealings were with Brokaw. The plaintiff cannot accept the benefits of a contract made by Brokaw, as its agent, with the defendant and then seek to prevent the defendant from showing what the contract was which he actually made with that agent.

We find no error in the record at the trial court warranting a reversal of the judgment there obtained.

The determination and order of the Appellate Term must, therefore, be reversed, with costs to the appellant in this court

First Department, November, 1911.

[Vol. 146. and in the Appellate Term, and the judgment in favor of defendant in the City Court reinstated.


Determination reversed, with costs to appellant in this court and in the Appellate Term, and judgment of the City Court affirmed.


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Upon a motion to dismiss the complaint at the close of a case the plaintiff is entitled to the most favorable inferences which can reasonably be drawn from the testimony, and if there be evidence which, if believed, would justify a verdict in his favor, the motion should be denied.

A railroad company is bound to exercise a very high degree of care for the safety of its passengers.

Plaintiff, a girl thirteen years old, was a passenger on an open trolley car on defendant's railroad. The tracks for part of the way led through a private alley owned or leased by the railroad. On one side of the alley was the hotel of the codefendant. There was a clear way of only thirtyfour inches between the car and the building. There was an arched opening in the wall of the hotel on the alley side which was covered by a canvas awning to the lower end of which was attached a pole of oneinch gas pipe about nine feet long. This pole was intended to be secured to the wall of the building. As the car was passing the hotel, the awning was blown against and partly into it, and the pole struck plaintiff inflicting serious injuries. There was testimony to show that a preceding car had also been struck by the awning which was flapping in the wind, that the motorman on plaintiff's car saw or should have seen the danger and that the pole struck the stanchion directly behind him, and then each succeeding one, until it entered the car and injured plantiff. There was no evidence as to how the awning became loose, but the hotel company endeavored to show that it had been untied by some boys on the preceding car, a theory clearly untenable.

Held, that it was error to dismiss the complaint at the olose of the case as to either defendant.

First Department, November, 1911.

App. Div.]

APPEAL by the plaintiff, Mary Agnes Sheppard, an infant, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 27th day of February, 1911, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Robert H. Roy, for the appellant.

D. A. Marsh, for the respondent Brooklyn Heights Railroad Company.

Otto H. Droege, for the respondent Inlet Hotel and Cigar Company.


Plaintiff, aged thirteen years, was a passenger on one of the trolley cars of the defendant's railroad on August 26, 1909, being one of a party who had gone to Coney Island on an excursion organized by a charitable society. The party were on their return trip to New York and were carried in six cars, in the sixth or last of which plaintiff was a passenger with her mother. At about four-thirty P. M. that car was on its way, following a route used for special excursion parties over the road, and which led through a private alley or road owned or leased by the railroad, to Surf avenue, into which the car was to turn. Adjoining the alley to the left or east was the Prospect Hotel, operated by the other defendant. This hotel had its frontage on Surf avenue, but on the side next to the alley there was an arched opening in the wall of the building, which in winter was filled in with a window, but which at the time in question was open and covered only with a canvas awning. The opening was some twelve feet high and nine feet wide. Its lower portion was occupied by a balustrade some thirty-three inches high, above which was an open space of about eighteen inches, and above that being the awning, which completely covered the rest of the space above up to the top where it was attached to a crosspiece of wood two by three inches. The covering was made of medium weight white army duck, hemmed, and to its lower end was attached a pole made of one-inch

First Department, November, 1911.

[Vol. 146. gas pipe, nine feet two inches long, so that it laid flat and close to the building, covering the opening completely for the entire length and width of the awning. It was raised and lowered by ropes, and there is testimony that it was intended to be secured by at least two rope fastenings at the bottom so that it could not fly out from the building if the fastenings were in place. There were eight entrances to the hotel on Surf avenue leading into a moving picture show there conducted as well, and there was another entrance into the same show from the alley. The distance from the easterly track of defendant's railroad to the opening in the building operated by the other defendant was forty-six inches and the overhang of the car was twelve inches, leaving a clear way of thirty-four inches. As the car in which plaintiff was a passenger reached a point opposite the opening in question, the awning was blown against and partly into the car, the pole or pipe striking the plaintiff, pinning her to her seat and inflicting injuries before the car was stopped and the pressure of the pole released, for which she now seeks damages.

On plaintiff's behalf there was evidence which, if credited by the jury, would have established the following facts: (1) That the pole of the awning was dragged along the runway of the car at an angle of forty-five degrees, the elevated end being the one nearer Surf avenue, and that the canvas was flapping and striking the car, first hitting it between the second and third front seats. Plaintiff, it is not disputed, was in the third seat from the rear, on the extreme left side of the car, that is, nearest to the hotel, and the side rails of the car were both down, so no one could enter or leave; (2) the sound of the canvas was heard some minutes before it struck plaintiff; (3) the pole first hit the stanchion directly back of the motorman and then hit every stanchion in succession until it finally entered the car and struck the plaintiff; (4) the pole struck each of the stanchions and swept along the side of the car, which latter swung nearer the awning as it started to turn into Surf avenue; (5) it had started to rain and the wind was blowing at the time. These facts were testified to by witnesses who were either on the sidewalk or in the sixth car. In addition two witnesses were produced, passengers on the fifth or next pre

App. Div.]

First Department, November, 1911.

ceding car, which was about 100 feet in advance of the sixth car, and who testified that as the fifth car passed the opening in question the awning was flapping freely, and one of them swears that it was blown out by the wind and hit every stanchion of the fifth car as it passed. The learned trial court, at the close of plaintiff's case, denied the motion to dismiss the complaint as to the railroad, and reserved decision on a similar motion as to the other defendant. For the defendant testimony was offered on behalf of the hotel company as to the method of construction of the awning, that it was securely fastened on the day of the occurrence in question, that there was no wind blowing on that day, and that the awning had become unfastened by the acts of from one to three boys on the car in question who, sitting or hanging over the rail, pulled on the retaining rope and unfastened it, though it is difficult to conceive how this could happen when the retaining rope was wound two or three times around the balustrade and the pole was hooked to the floor according to Kalman Goldberg's testimony. The defendant railroad called witnesses to prove that no accident had ever happened at this point before. The conductor of the fifth car denied that the awning ever struck that car. The motorman of the sixth car testified that he saw the fifth car and that it did not come in contact with the awning; that the awning was the usual distance from the car when it passed, and that he stopped his car as soon as he got the signal. The conductor of the sixth car testified that the awning first struck the seat before that in which plaintiff was sitting, that only one end thereof came out, and that no boys were sitting on the guard rail. At the close of the entire testimony the complaint was dismissed as to both the defendants. We think this was error. Plaintiff was entitled, upon the decision of such a motion, to the most favorable inferences that could reasonably be drawn from the testimony and if there was evidence received, which, if believed, would have justified the finding of a verdict in her favor, the motion to dismiss should have been denied. Here plaintiff was a passenger on the defendant railroad, which was bound to exercise a very high degree of care for her safety and security. (Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380; Klinger v. United Traction Co., 92 App. Div.

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