Supreme Court APPELLATE DIVISION—THIRD DEPARTMENT 2 GEORGE F. AVERY Plaintiff- Respondent against NEW YORK, ONTARIO & WESTERN Defendant-Appellant This action was commenced by the plaintiff by the service of a summons and verified complaint upon the defendant December 28th, 1909. 3 The answer was served January 19th, 1910, and trial was had at the Madison Trial and Special Term of the Supreme Court, commencing February 14th, 1910, before Mr. Justice Henry B. Coman and a jury. A verdict was rendered by the jury awarding the plaintiff $5,000 damages. Defendant moved for a new trial on the minutes, which was denied. From the judgment in plaintiff's favor, entered on the verdict and the order denying the motion for a new trial, this appeal is taken. 4 APPEARANCES : 5 Coville & Moore for plaintiff. as counsel. YOU ARE HEREBY SUMMONED to answer the complaint in this action, and to serve a copy of your an7 swer on the plaintiff's attorneys within twenty days after the service of this Summons, exclusive of the day of service; and, in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Trial to be held in the County of Madison. COVILLE & MOORE, Oneida, N. Y. 8 SUPREME COURT-MADISON COUNTY. GEORGE F. AVERY 9. VS. RAILWAY COMPANY. The plaintiff for a complaint herein against the above named defendant respectfully alleges and will show to the Court: 10 FIRST.–Upon information and belief that the said defendant now is and during all the times hereinafter mentioned, was a corporation duly organized, existing and created under and by virtue of the Laws of the State of New York; and that the said defendant was at all times hereinafter mentioned and still is operating a railroad through the City of Oneida, and State of New York. 11 SECOND.—That on or about the third day of August, 1909, this plaintiff was riding on his bicycle in an easterly direction along and upon the sidewalk on the northerly side of Seneca Avenue, which is a public street or highway in the City of Oneida, New York, which crosses the tracks of the defendant in said city; that as plaintiff reached said crossing the defendant negligently and carelessly ran a handcar propelled by its servants and employees up to, upon, and across said highway at said crossing, and negligently and carelessly omitted, while so approaching 12 said crossing, to give any signal by ringing a bell, or otherwise, and negligently and carelessly omitted to 13 warn this plaintiff by its flagman of the approach of said hand car, although it was the custom of the defendant, known to this plaintiff, to have a flagman stationed at said crossing for that purpose at that hour of the day; that it was the duty of the defendant to keep and maintain said crossing and its superstructure thereon in a safe and proper condition for those using said highway, and to furnish proper 14 guards and warnings at said crossing, and that at that time and place defendant failing in its duty to the public and to this plaintiff negligently and carelessly suffered and permitted said crossing and its superstructure thereon to be in an unsafe and dangerous condition and unguarded and without warnings or signals of the approachig car; and that by reason of the carelessness and negligence of this de15 fendant as above set forth, this plaintiff, without any fault or neglect on his part, was at the time and place aforesaid, while upon said highway, struck violently by said hand car, knocked down, severely bruised and lacerated and injured internally so that he became sick and lame and unable to work and was unable to walk and was confined to his bed for several weeks and unable to do any work; that he is still lame and 16 unable to work, except a portion of the time, and at great disadvantage; that as he is informed and believes, said injuries are permanent in their nature and by reason thereof this plaintiff will for the remainder of his life be lame and subject to pain and suffering and partially or totally disabled from the performance of any work whatever; that since he re- 17 ceived said injuries and by reason thereof plaintiff has been compelled to expend and has necessarily expended large sums of money for medical attendance, for medicine, and for nursing, and as he is informed and believes, will be compelled by reason thereof to expend in the future large sums of money for medicine, medical attendance and nursing; that this plaintiff is a contractor and builder and was at the time of 18 receiving said injuries and had been for many years prior thereto actively engaged in his business of building and repairing houses and other structures, and superintending such work, and was receiving a large income from his business and labor; that by reason of said injuries plaintiff was totally unable for several weeks to do any work or give any attention to his business; and ever since has been and now is 19 unable by reason of said injuries to work but a small portion of the time, and then under great disadvantage occasioned by his lameness, pain and suffering; that he has been unable to take new contracts and has lost much work and his income has been greatly diminished; and as he is informed and believes, his injuries are of such a nature that he will never hereafter be able to successfuly conduct his said business 20 and to engage as heretofore in the superintending and managing of building enterprises; that by reason of the facts aforesaid this plaintiff has suffered loss and sustained damages in the sum of $10,000.00. |