Opinion
December 7, 1906.
Charles F. Brown, for the appellant.
Joseph R. Swan, for the respondent.
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 for 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, but 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 was standing near him, asked him if he was going to get off, and that he replied that he 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 he 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 of the cross-town tracks.
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 he 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 any 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 was 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 known 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 cross-town 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.
Neither 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 new trial granted, with costs to the appellant to abide the event.
INGRAHAM, J., concurred; PATTERSON and McLAUGHLIN, JJ., dissented.
I concur on the ground that the proof as to the happening of the accident did not conform to the allegation of the complaint. The allegation is "that while the plaintiff was standing on the rear platform of said car waiting for said car to come to a full stop to permit him to alight therefrom, through the negligence and carelessness of the motorman or of the conductor of said car, the agents and servants of the defendant, or of both of them, said car was suddenly and violently started forward at great speed." The plaintiff testifies that as the car approached Forty-second street he proceeded to the rear platform, and waited until every one else who wished to alight had done so; that the car never came to a full stop but moved slowly; that he stood on the rear platform holding on with his right hand to an upright stanchion turning up from the platform; that the conductor asked him if he was going to get off, and he replied that he was when the car stopped. Up to this point it is apparent that plaintiff was in a position of comparative safety, and that however much it may have been a violation of defendant's contractual obligation to plaintiff to refuse to bring the car to a full stop, it was not negligent to start up the car, unless the starting was accompanied with such violence as to throw a man off the platform. Of such a violent start there is no evidence, and, therefore, the negligence charged in the complaint was not proven. The plaintiff's testimony as to just how the accident happened is to the effect that after he had spoken to the conductor, and while the car was still moving slowly, but had not come to a stop, he descended from the platform, placed his left foot on the step and put the other one off, and while he was in this position the car was started forward. In other words, he says that while he was in the act of alighting the car was started up and threw him off. This is not the charge contained in the complaint. It may be that a cause of action might be predicated upon the testimony given by plaintiff at the trial, but not the cause of action alleged in the complaint. And even if it were possible to hold that the allegation and the proof conformed, there would still be the difficulty arising from the absence of any proof that the conductor saw the plaintiff in the act of alighting, or had reason to expect that he would attempt to alight until the car had come to a full stop, since the plaintiff's declaration had been to the contrary.
The plaintiff was a passenger on one of defendant's north-bound Lexington avenue cars, which he took at Third street for the purpose of going to Forty-second street. The testimony offered by him tended to establish that as the car approached Fortieth street he notified the conductor that he desired to get off at Forty-second street; that the car as it approached Forty-second street slowed up; that he thereupon left his seat and went to the rear platform, preparatory to getting off; that on the south side of Forty-second street the car ran very slowly, and several persons jumped off; that while thus running the conductor said to plaintiff, "Are you going to get off the car?" and he replied, "I am when it stops;" that thereupon, without further warning to him, the car was suddenly started and he was thrown to the street and injured.
The testimony on the part of the defendant was to the effect that the plaintiff stepped off the car while it was crossing Forty-second street, and in this way the injuries were sustained. There was no dispute between the parties as to the place in Forty-second street where plaintiff was injured, substantially the only dispute being whether the car was suddenly started after it had commenced to slow up in obedience to his request to be let off, or whether he stepped off while it was in motion.
The court did not instruct the jury that there was no invitation to the plaintiff to alight, and had it done so it would have been error. That was a question of fact which was properly left to the jury. They found in favor of the plaintiff's contention, and there is sufficient evidence to sustain their finding. The case, therefore, is brought within the principle laid down in Crow v. Metropolitan Street R. Co. ( 70 App. Div. 202; affd., 174 N.Y. 539).
I vote to affirm the judgment and order appealed from.
PATTERSON, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.