
    Potter v. New York Cent. & H. R. R. Co.
    
      (Superior Court of New York City,
    
    
      General Term.
    
    July 5, 1892.)
    Negligence—Causing Death—Circumstantial Evidence.
    To sustain an action for damages for death, as caused by defendant’s negligence, the essential facts of negligence on defendant’s part and of freedom from negligence of the deceased may be proved by showing circumstances from which the • existence of those facts may fairly and logically be inferred. If the inferences from the circumstances shown are not certain and incontrovertible, the question is one for the jury.
    Appeal from trial term.
    Action by Nellie Potter, administratrix of John Potter, deceased, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff,.entered on the verdict of a jury, and from an order denying a motion by defendant on the minutes for a new trial, defendant appeals.'
    Affirmed.
    The opinion of McAdam, J., refusing a motion for a new trial, was as follows; “John Potter, a car inspector in the defendant’s employ, was inspecting certain of its cars, when a train of other cars, propelled by two engines, suddenly switched backward onto the middle track, pushing together the cars between which he was at work, crushing him to death. He had no warning. The court sent the question of negligence to the .jury, and they awarded his widow and administratrix' $5,000 damages. The defendant insists that it was error not to nonsuit the plaintiff, and cites Besel v. Railroad Co., 70 N. Y. 171, to sustain its claim. Whether the defendant performed its duty to its employe was, on the evidence, and the inference to be drawn from it, a question for the jury.. Abel v. President, 103 N. Y. 581, 9 N. E. Rep. 325; 128 N. Y. 662, 28 N. E. Rep. 663. The jury was properly instructed as to the law, and their verdict on the facts is sufficiently supported by the proofs. True, it was incumbent on the plaintiff to show affirmatively that the negligence of the defendant was the sole cause of death. But it was unnecessary to do this by positive and direct evidence of negligence of the defendant and of freedom from negligence of the deceased. The proofs may be indirect, and the evidence had by showing circumstances from which the inference is fairly and logically to be drawn that these essential facts existed. When, from the circumstances shown, inferences are to be drawn which are not certain and incontrovertible, and may be differently made by different minds, the question is one for the jury. See note to Buesching v. Gaslight Co., 39 Amer. Rep., at page 513; Hays v. Miller, 70 N. Y. 112; Powell v. Powell, 71 N. Y. 71; Hart v. Railroad Co., 80 N. Y. 622; Ochsenbein v. Shapley, 85 N. Y., at page 224. The inferences to be drawn from the evidence were sufficient to warrant the jury in finding that the defendant had not given reasonable protection to its employe while in the performance of his work, and that its breach of duty and negligence resulted in his death. The motion for a new trial must be denied. Forty days’ stay of execution after notice of entry of judgment, and a like time to make a case.”
    Argued before Freedman, Dugro, and Gildersleeve, JJ.
    
      Prank Loomis, for appellant. Abram Kling, for respondent.
   Per Curiam.

For the reasons set forth in the opinion of the court below the judgment and order appealed from are affirmed, with costs.  