Adams v. New York City Railway Co. , 101 N.Y.S. 510 ( 1906 )

Houghton, J.:

The plaintiff was a passenger on a north-bound car on defendant’s Lexington avenue line. By his complaint he alleges'that after having notified the conductor that he desired- to . alight at Forty^ second, street, he proceeded to the rear platform fpr the purpose of so doing; and that after the car had been slowed down at that point it gave a sudden- and violent start, which threw him from the platform to the street. The plaintiff testified that the car did not stop at the south side of Forty-second street, b.ut simply slowed down to such an extent that several passengers alighted, and proceeded slowly to cross the. street and the two .cross-town tracks thereon; and that the-conductor, who ivas standing near him, asked him if he was going to get off, and that lie replied that lie was when the car came to a stop; that thereupon the conductor gave the signal to proceed, and that the car jumped and that the dashboard hit him in the back, throwing him to the street. -

The plaintiff describes himself, as standing with his right hand hold of the stanchion supporting the roof of the rear platform, with his left foot on the step and his right hanging off,: when the signal to go ahead was given; and lie says that his right! foot struck 'the ground and he was spun around by the impetus of his fall. His right leg Was fractured in a manner indicating considerable force..'

The plaintiff fell within the lines of Forty-second street and within a few feet of the south cross-town track, and it is apparent that the body of the car was then across one or both o¡f the cross-town tracks. 1 . ;

The defendant’s proof shows that all north-bound cars stop -before crossing Forty-second street, because of the intersection of railroads, and that this- car did in fact stop at that point and that ■ passengers alighted; and that the accident to plaintiff was caused by his attempting to alight after the car had started and while it was crossing the street, or because lie negligently fell from the step, and that no sudden jerk was given or start made, and that there could have, been no jerk at the time plaintiff fell because the power was necessarily off while crossing the two cross-town tracks. It was usual for the car to stop on the north Side of Forty-second street as well as upon the south side.

The court instructed the jury that there was no evidence in the case from which they could find that the conductor or auy employee of defendant invited the plaintiff to alight while the car ■ was in motion or at the south side of Forty-second street.

From the law of the case, as laid down by the court, there was, therefore, no invitation to the plaintiff to alight, upon which he was acting, and failure to give him opportunity to do so, as -yyas the situation in Crow v. Metropolitan Street R. Co. (70 App. Div. 202).

. The only question presented is whether or not the proof- fairly shows that the car gave a sudden-and violent jerk, or lurch forward, sufficient to throw plaintiff to the. ground while he himself was exercising due care. We think it does not. The plaintiff was perfectly conscious that the car was not being brought .to a stop, for when asked whether or not he would alight he said he would not do so until- the car had stopped. He was familiar with- electric cars and with the locality. He must have'lcnown that the car would not be brought to a stop in the middle of Forty-second street, and that there would be more or less jolting of .the car in crossing the crosstown tracks. Whatever momentum was necessary in order that' the car might cross the tracks-without power must have been acquired before plaintiff fell, for he fell at a point it would seem where the car had no motive power. : - -

Heither the.plaintiff nor his witnesses give sufficient description of • the movement of the car from which it can be fairly inferred that defendant’s motorman was negligent. He himself simply says that the car jumped,” and his witness Brennan describes the movement in the same manner. There is no description of the extent- of the jumping or the violence Of the starting. To start at. all there must be some movement,, and all of the defendant’s witnesses say ’that when the car did start from the south side of Forty-second street it started in the usual manner.

We think the verdict was unjustified by the evidence, and that the judgment and order must be' reversed and a hew trial granted, ' with costs to the appellant to abide the event.

Ingraham, J., concurred; Patterson and McLaughlin, JJ., dissented. .