Opinion
May 11, 1917.
D.A. Marsh [ George D. Yeomans with him on the brief], for the appellant.
Joseph R. Clevenger, for the respondent.
The plaintiff has a judgment for injuries received on New Utrecht avenue as she was entering a Sea Beach line car at Sixty-second street. Presumably the locus was in the borough of Brooklyn. The complaint alleges that the defendant is a domestic corporation "engaged in the operation of an elevated railroad from Manhattan to Coney Island, in the city of Brooklyn, New York, for the carriage of passengers." To that there is a general denial. The answer involves a denial (1) that the defendant was a corporation; (2) that it was operating the railway as alleged. As there is no affirmative allegation in the answer that the defendant is not a corporation, the plaintiff was not required to prove it. (Code Civ. Proc. § 1776.) But a corporation may exist even under the name of the Sea Beach Railway Company and yet not be operating the railway whereby the plaintiff was hurt. There was a railway, and there were railway cars. Where did the railway begin? Where did it end? What place did it traverse? What relation did this corporation bear to it? To operate what line of railway was the defendant organized? What is stated in its articles of association, or any statute? The record is silent as to every such thing, unless it be found in the following. A witness was asked, "Q. What sort of a car was this? A. Sea Beach line." Is evidence that the plaintiff was entering a "Sea Beach line" car proof that a company called the "Sea Beach Railway Company" owned the car and was operating it? Du Casse testified that on the day he was "conductor on the Sea Beach line of the New York Consolidated Railroad Company," and the record shows that he was engaged on the train in question. That indicates that another company was operating both the line and the car, and precludes a possible inference that the defendant was operating it on account of identity or similarity of name. I have examined Indianapolis Northwestern Traction Co. v. Henderson ( 39 Ind. App. 324); Mobile Light Railroad Co. v. MacKay ( 158 Ala. 51); Kerr v. Quincy, etc., R.R. Co. ( 113 Mo. App. 1); Walsh v. Missouri Pac. Ry. Co. ( 102 Mo. 582, 585); Geiser v. St. Louis, I.M. S. Ry. Co. ( 61 Mo. App. 459); Keltenbaugh v. St. Louis, A. T. Ry. Co. (34 id. 147) and Chicago Union Traction Co. v. Jerka ( 227 Ill. 95). In each case facts appeared that showed that the defendant was the operator of the railway, or permitted an inference that it was so, and there was nothing to rebut it. The difficulty here is that the evidence does not show any relation of the defendant to the line, while it does show an operating relation of another company to the line and that such other company's servant was the conductor of the train.
The judgment should be reversed and a new trial granted, costs to abide the event.
JENKS, P.J., MILLS, PUTNAM and BLACKMAR, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.