Akersloot v. Second Avenue Railroad , 43 N.Y. St. Rep. 290 ( 1892 )

Maynard, J.

—There was sufficient evidence to go to the jury upon the issue of defendant’s negligence. The jury could properly give credence to the testimony of the witness Kerkow, who was in a better position to know just how the accident occurred than any other person examined upon the trial. If she was to be believed, the conductor signalled to the driver to go ahead before she had reached a place of safety upon the car with the plaintiff’s five year old child, and the car immediately started with a jerk, which threw her upon the seat and the child into the street and under the car where his right leg was so crushed that amputation of a portion thereof became necessary.

The starting of the ear was under the control of the conductor. It was his duty to see that a passenger, lawfully entering the car, was in a place of safety before giving the signal to the driver to proceed. The car was an open summer one with seats running cross-wise and a place between the seats at the sides for the passengers to enter by means of steps running the entire length. If the car started as the plaintiff’s child and its attendant reached the topmost step, which was on the level with and a part of the floor of the car, there would be danger that the sudden motion imparted to it, while they were in that position, would throw one or both of them to the ground, or otherwise cause them injury, and the defendant owed them a duty, in this respect, which the jury may have found was disregarded by their agents and servants who then had charge and control of the car and its movements.

The judgment should, therefore, be affirmed, with costs.