Keating v. New York Central Railroad , 3 Lans. 469 ( 1871 )

By the Court —

Johnson, J.

The judge at the circuit properly refused to nonsuit the plaintiff, and also to direct a verdict in favor of the defendant, at the close of the evidence. It was clearly a case to be submitted to a jury upon all the testimony on the point of the defendant’s negligence, and also upon the point of the contributory negligence of the plaintiff. Upon the question of the contributory negligence of the plaintiff in attempting to get upon the cars at that point, it was most clearly a question for the jury to determine, and one upon which their verdict must be deemed conclusive. The cars were not, it is true, standing, at the time the plaintiff attempted to enter, at the place provided by the defendant for passengers to enter, but were standing across the street by which the plaintiff was approaching for the purpose of taking her passage on the same cars. The testimony shows that the cars were extended entirely across the street, between the plaintiff and the depot where passengers most usually take the cars, and there was no way for the plaintiff to get to the depot except by passing over the platform of the cars, or by waiting until they should be removed out of the way. There is also evidence tending to show that the cars were standing still, at the time the plaintiff attempted to get on; that no signal bell for starting had then been rung, and also that passengers coming along the same street were accustomed to take the cars at the same place, when found standing across the road in that manner. There is no evidence that the defendant had ever objected to passengers taking their seats in the train at that point and in that manner, or given any notice to that effect, or taken any steps whatever to prevent it. All the witnesses agree that it is just as convenient for passengers to get upon the cars from the sidewalk on that side as from the place prepared for getting on at the depot. Probably ninety-nine persons of ordinary care and prudence for their own safety, in every one hundred, would, under the same circumstances, have made the attempt to get on, as did the plaintiff and her sister.

On the other question of the negligence of the defendants servants in charge of the train on that occasion, it is equally clear that the case was one for the determination of the jury and not of the court. The brakeman had seen the plaintiff and her sister approaching, and without looking to see whether they were about to get upon the cars standing right in their way, gave the signal to the person in charge of the engine to start. The engine in obedience to this signal was instantly started, and as the evidence tends to show, with a sudden and violent motion or jerk, which threw the plaintiff down just as she was about rising upon the lower step of the platform of the car and holding to the iron rail. The injury was caused by this fall and the moving cars, as all agreed. It appears from the testimony of the defendant that the engineer who ran the train was not in charge of the engine at this time nor upon it, but that it was in the charge of the fireman alone, whose only experience upon an engine was that of fireman for two and a half years. In the case of O’Mara v. Hudson River R. R. Co. (38 N. Y., 445), it. was held, that the running of an engine across the frequented streets of a village by a fireman alone, without an engineer, would justify a jury in finding a want of proper care on the part of the defendant. In this case it was most probably the mode of starting, which was the immediate cause of the fall and injury, and the jury might well have concluded that had the engineer then been in charge of his engine at this point where passengers were liable to get upon the cars, and were in the constant habit of doing so, the train would have been started differently, and in a manner not dangerous to persons attempting, at the time of such starting, to get upon the train. It was most clearly a fact for their consideration, and one which would of itself, justify a finding of negligence against the defendant. The other fact, so carefully and guardedly submitted by the judge at the circuit, of the want of care by the brakeman, if they should find the facts indicated on which such want of due care depended, was a proper subject for the consideration of the jury, and was properly submitted; neither' the exception to ,the charge of the judge to the jury nor to his rulings is well taken.

The judgment must therefore be affirmed. •