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App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. on for the satisfaction of their judgment. Susemihl swears expressly that “when I made up my inind to turn over these bills to them in payment of their accounts, to the Mott Iron Works and to the Henry Huber Co., I turned them all over to them in payment of their bills against me. The bills which Mr. Mott's firm took were selected by two of us. Myself and the bookkeeper.” Mr. Gleason, who represented the Mott Iron Works, and Mr. Tiedeman, representing the Henry IIuber Company, both swore that the assignment was absolute and was in payment of the debts due from the judgment debtor to these creditors. The mere fact that, subsequently, these creditors were willing to share with the other creditors upon condition that the plaintiffs would release the lien of their executions so that all would share alike, is not conclusive that the defendant creditors took the transfer of the book accounts under a secret trust, or in any other manner than is testified to. The evidence shows that the amount collected from these assigned book accounts was very much less than the amount due to the creditors. It is now settled in this State that a creditor has a right to transfer to any particular deltor property sufficient to pay his debt, even though he thereby places it out of his power to pay his other creditors; that, as long as the object is simply to pay a bona fide debt, and that is the only result accomplished, the transaction is not fraudulent as to other creditors. (See Maass v. Falk, 146 N. Y. 41, and cases there cited.)
We also think that the answer of the defendants was sufficient to put in issue the allegations of the complaint. A statement in an answer specifically denying a particular numbered paragraph of the complaint is a good denial of that paragraphı; and the mere fact that the answer, after specifying the number of the paragraph which it is intended to deny, repeats the allegations of the paragraph, does not make it any the less a denial of the allegations contained therein.
As to the amendment allowed to the answer of one of the defendants upon the trial, we think it was clearly within the discretion of the trial court, and that the plaintiffs could not have been surprised or injured in any way by such amendment, as the answers of the other defendants put the allegations of the complaint in issue, and the plaintiffs were, therefore, compelled to prove such allegations.
Some complaint seems to have been made as to the admission in evidence by the court of the examination of the defendant Susemill First DEPARTMENT, MARCH TERM, 1897. [Vol. 15. in supplementary proceedings as evidence against Susemihl only, and not against the other defendants. The examination is before the court, lowever, and we are satified that, assuming it to have been admitted as against the other defendants as well as against Suisemihl, the result would not have been different, as the clear preponderance of evidence was in favor of the defendants. Upon the whole case, we think that no error was committed, and that the judgment below was clearly right and should be affirmed, with costs.
Vax Brunt, P. J., Williams, Patterson and O'Brien, JJ., concurred.
Judgment affirmed, with costs.
Rosa Ulger STABENAU, an Infant, by ALBERT V. B. VOORHEES,
Jr., her Guardian ad Litem, Respondent, v. THE ATLANTIC AVENUE RAILROAD COMPANY of Brooklyn, Appellant.
Negligence — action of a motorman in a position of peril - error of judgment. In an action in which negligence was charged against a street railroad corpora
tion, it appeared that all of a group of children who attempted to cross the tracks of an electric street railroad in front of an approaching motor car, succeeded in doing so in safety, except one, whose foot became caught between the rail and a plank so that she was unable to move; that as soon as it became apparent that the child was in danger, the motorman applied the brake, and succeeded in stopping the car before the wheels had passed over the child, but
not before the car had struck her. Hell, that it did not appear that the railroad company was guilty of negligence; That the mere fact that there was another appliance upon the car, by the use of
which, if it was not rendered useless by reason of its sudden application (which was not improbable) the motorman might have stopped the car quicker
than with the brake, did not alter the case; That the motorman's position being one of peril, if he in good faith considered
the use of the brake safer than the use of the other appliance, his error, if any, was one of judgment for which the railroad company was not liable.
APPEAL by the defendant, The Atlantic Avenue Railroad Company of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of June, 1896, upon the verdict of a jury, App. Div.] First DEPARTMENT, MARCH TERM, 1897. and also from an order entered in said clerk's office on the 28th day of May, 1896, denying the defendant's motion for a new trial made upon the minutes.
Eugene Lamb Richards, Jr., and Arthur L. Sherer, for the appellant.
Henry B. Johnson, for the respondent.
The plaintiff was injured by one of the defendant's cars, and the action is brought to recover damages sustained in consequence of such injury. The case was submitted to the jury, who found a verdict for the plaintiff, and we are asked to reverse this judgment on the ground that the evidence did not justify a finding that the accident happened because of the negligence of the defendant. The accident happened at a street crossing at New Utrecht. The defendant's road approaches this crossing by a curve. There is a high board fence on the side of the defendant's road as it rounds this curve, so that the crossing where the plaintiff was injured is invisible from an approaching car until it is quite close to the side of the street. As one of the defendant's cars was approaching this crossing at about seven o'clock in the evening of January 19, 1894, several children attempted to cross the track in front of the car. It was a clear night, but with no moon, and was quite dark. All of the children crossed the track in safety, except the plaintiff, whose foot became caught between the rail and one of the planks out of which the crossing was constructed, so that she was unable to move. There is no evidence from which it can be determined as to what distance the car was away from the plaintiff at the time her foot was caught. The car was well under the motorman's control, and before the children were in sight the power had been turned off. The motorman was at his post attending to his duties, and the plaintiff's witnesses say that as soon as he became aware of the presence of the plaintiff upon the track, he put on the brake as hard as he could, attempting to stop the car, which he succeeded in doing when it had gone but a few inches past the child. The plain
APP. Div.-Vol. XV. 52
FIRST DEPARTMENT, MARCH TERM, 1897. [Vol. 15. tiff's foot was not upon the rail, the injury being inflicted by some portion of the car, as it passed, striking the plaintiff's foot.
It seems to us that this evidence fails to disclose any negligence on the part of the defendant in the performance of any duty which it owed to the plaintiff. When the crossing came in sight, assuming that the car was in the neighborhood of 100 feet from the crossing, the mere fact that the children were running across the track did not require that the motorman should at once stop the car, as there was ample time for the children to safely cross in the absence of any unusual accident. This is apparent from the fact that all of the children except the plaintiff crossed in safety. Until the fact that the child's foot was caught in the track became known to the motorman, or until the fact was so apparent that, in the exercise of ordinary care, he should have known it, or until the car was so close to the child that there was ground for apprehending that the child could not cross the track in safety, it does not seem that it was the duty of the motorman to stop the car. (Fenton v. Second Ave. Railroad Company, 126 N. Y. 625; Lavin 'v. Second Ave. R. R. Co., 12 App. Div. 381.) As before stated, we can find no evidence to justify a finding that there was any such indication as would impart to the motorman a knowledge of the plaintiff's inability to get out of the way of the car prior to the time the motorman commenced to put on the brake.
Chisholm, who was upon the platform of the car, being then an employee of the defendant, and who was called by the plaintiff, testified that they first saw the plaintiff as the car was coming around the corner. “The car ran after we first saw the children and before we saw this little girl fall, I should judge about fifteen feet; something like that.” He further testified that when the car was going up towards New Utrecht avenue, “and within about fifty or sixty feet, to the best of my opinion, we seen a lot of children on the crossing. When they seen the car coming they made a run. Maddock started to put on his brakes as hard as he could, and this little child, as she was running across, she fell.” There is not the slightest evidence tending to contradict this statement sworn to by the witness produced by the plaintiff, that as soon as the child was seen crossing the track and before she fell, or as soon as it appeared that she was in danger, Maddock, the motorman, put on the brake App. Div.] First DEPARTMENT, MARCH TERM, 1897. and did what he could to stop the car. It is thus affirmatively shown that as soon as it appeared that the plaintiff was in any danger, Maddock attempted to stop the car. Is there any evidence here of negligence on the part of Maddock or of any one upon the car in failing to do what could be done under the circumstances to avoid the accident? I think not.
It seems that these cars are also furnished with what is called a reverse handle, which it appeared would stop the car quicker than the brake, if using it in that way did not blow out the fuse. Chisholm testified : “In speaking of this reverse handle or reversal handle, a car can be stopped quicker that way ; but suppose that you used the controller and the reverse handle suddenly, it is possible that that sometimes blows out the fuse. In other words, you can't tell, when you use that reverse handle suddenly, whether it is going to blow out the fuse or not; therefore, I could not in this case tell positively, in case I had succeeded in reversing the controller handle, whether that would have blown out the fuse. She is liable to blow out any time if you turn it on suddenly ; it is more apt to blow out when you suddenly reverse. I have known that to happen with a sudden reversal. That removes the power in use."
When the fact that the plaintiff was in danger was apparent, the motorman had to determine instantly -- considering the distance he was from the child, and the nature of the two appliances at hand to stop the car — whether it was better to use the brake or the reverse handle. He determined to use the brake and did use it with such success that it stopped the car just as it reached the child. It was the duty of the motorman to determine which, under the circumstances, was the best method of stopping the car, and the defendant is not guilty of negligence because of an error of judgment exercised under such circumstances. One of two things had to be done, and even now we cannot say with certainty that if this reverse handle had been used the car would have stopped any sooner than it did. What the motorman was bound to do at this critical moment was to exercise his best judgment in stopping the car immediately upon the appearance of such a condition as would indicate that the child was in danger. If lie, under the circumstances, in good faith, considered that it was safer to attempt to use the brake at that time than to adopt any other means, and did use the brake to stop the