Legal Opinion

Scheu v. Union Railway Co.

Appellate Division of the Supreme Court of the State of New York

Decided April 6, 1906PublishedCited by 5 opinions

Appeal by the defendant, the Union Eailway Company of New York city, from a judgment of the Supreme Court in favor of the plaintiff, entered in the -office of the clerk of "the county of ISTew York on the 28th day of June, 1905, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 14th. day of July, 1905, denying the defendant’s motion for a new trial made upon the minutes.

1Opinion of the Court

Houghton, J.:

We are constrained to reverse this judgment because the plaintiff was permitted to recover upon proof of a state of facts wholly at variance with the negligent acts which she alleged in her complaint.

The negligence which she pleaded was that, while riding as a passenger, and seated, the defendant propelled its car at such a_ dangerous and high rate of speed around a curve that she was thrown from her seat to the ground, sustaining the injuries of which she complains.

*240Against the timely and repeated objection of the defendant that the proof was at variance with the pleading, .she…

2Cases cited4 opinions

  1. Southwick v. First National Bank of MemphisNew York Court of Appeals · 1881
  2. Woolsey v. Trustees of the Village of EllenvilleNew York Supreme Court · 1893
  3. Newman v. Pennsylvania RailroadAppellate Division of the Supreme Court of the State of New York · 1898
  4. Ray v. United Traction Co.Appellate Division of the Supreme Court of the State of New York · 1904

3Cited by5 opinions

  1. Memphis Street Railway Co. v. BerryTennessee Supreme Court · 1907
  2. Clark v. Title Guarantee & Trust Co.Appellate Division of the Supreme Court of the State of New York · 1940
  3. Stern v. MayerAppellate Division of the Supreme Court of the State of New York · 1906
  4. Bernstein v. East 167th Street Corp.City of New York Municipal Court · 1937
  5. Lynch v. Cronk, New York County Courts1915

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