Opinion
Argued May 3, 1898
Decided June 7, 1898
Charles J. Bissell for appellant. Thomas Raines for respondent.
This is an action to recover for personal injuries alleged to have been sustained by the plaintiff while a passenger on one of defendant's street cars in the city of Rochester, by reason of the negligence of the company.
The plaintiff, a young lady twenty-two years of age at the time of the accident, was a teacher in a public school. The defendant operated a trolley line, and the plaintiff boarded one of its cars on the 13th of March, 1893, at the junction of Emerson street and Backus avenue, where the tracks turn from the former into the latter street. At the point where the plaintiff entered the car it had stopped on a curve.
It appears that the alleged injury suffered by the plaintiff was not due to starting the car, for she had gotten on board, but happened a moment later, when she was about to take her seat, and the car passed with more or less violence of motion from the curve on to the straight track.
On the plaintiff's direct examination she stated as follows: "I stepped on to the first or second step when the bell was rung, and, as I got a few steps in the car it gave a sudden jerk and twisted my knee, and I went back violently on the seat. * * * When this jerk occurred I had gotten a few steps in the car — about half way between the door and the stove. I was just about ready to sit down when my weight was on my right knee and twisted me, and it seemed as though it twisted everything out of place. It threw me back on the seat. If the seat had not been there I think I would have gone on the floor."
She also stated that when she left the car she limped, was in great pain, and went immediately home and to bed. On cross-examination plaintiff testified: "It gave me a twist; twisted me right around, like that; I fell down; if the seat had not been there I would have gone to the floor; I fell down on the seat back of me; I did not strike my knee when I fell; as soon as I was in the seat I felt that I had hurt myself; I was in misery all the way home."
The plaintiff put upon the stand a business man, who was in the habit of riding daily upon these cars. He testified as follows: "When the car goes around on to the curve from Emerson street and stops on Backus avenue, the front wheels of the car are just about off the curve; the hind wheels of the car are on the curve. When they start at that point there is not much motion, that is, the car does not swing around so fast, but when it starts back further, near the crosswalk, there is a side motion of perhaps two or three feet, perhaps two feet, and when they start off quickly, if a man is in the rear end of the car, it has a tendency to throw him to one side, which has often been the case with myself. I have seen others thrown in the same manner."
This is substantially the plaintiff's case, except the medical testimony.
It is not claimed that the verdict for twelve hundred and fifty dollars is unreasonable, if the defendant was guilty of negligence. The plaintiff's injuries were proved in detail, but it is unnecessary to consider them at this time. It is undisputed that they were very serious, and, while not permanent, in the opinion of the physicians, were likely to deprive plaintiff of the free use of her limb for from six months to three years after the trial, which took place nearly a year subsequent to the accident.
The defendant swore the motorman who was running the car at the time of the accident. He admits that he was a comparatively green hand, and did not know of the occurrence until the following June. He testified as follows: "When I was learning first, I might have observed that I had a tendency to let the power on too quick. It takes experience to graduate the power to the necessities of the case. When a man first goes on to learn he is under a disadvantage in starting off, in exactly measuring what will move the car. * * * I don't recollect who instructed me in regard to that line or that route; no one ran over it with me to show it to me, only when I was first turned in."
The defendant put upon the stand several conductors to show that it was their custom to allow passengers to step on the car before ringing the bell to start it, but that it was not usual to wait until they had taken their seats, unless there was evidence of age or infirmity.
This, with some medical testimony, makes up the defendant's case.
The question of defendant's alleged negligence lies in a very narrow compass.
There is no direct proof that the motorman, in driving his car from the curve to the straight track at the time of the accident, employed more electrical power than was necessary to properly accomplish that result.
The question is, whether it was a fair inference to be drawn by the jury that there was an excess of power used by reason of the fact that when the plaintiff was in a standing position and about to take her seat she was so violently twisted and prostrated as to cause the injuries disclosed.
Plaintiff's witness, already referred to, who testified as to the effect of the curve upon the cars, stated that "when they started off quickly" certain results followed, to wit, a tendency to throw a passenger to one side, and that he had often observed it.
The difficulty in this case is that we have no evidence whatever as to the speed of the car or excess of electrical power used while passing the curve, if such be the fact.
It is well known that a car in passing around a curve is subjected to a somewhat violent motion. It is incidental to the situation, is something that must be guarded against by every passenger, and the railroad company is liable only when the speed is excessive.
It would be a very harsh rule that would hold a company liable for a possible injury resulting while passing, at a proper speed, over a curve that has long been in use and where no accidents are shown to have happened.
We are of the opinion that it was error to submit the question of defendant's negligence to the jury.
This case falls clearly within the rule that where an accident is not the reasonable, natural and probable result of the situation which ought to have been foreseen by the defendant in the exercise of the degree of care exacted from a carrier of passengers, no liability follows. ( Dougan v. Champlain Transportation Co., 56 N.Y. 1; Loftus v. Union Ferry Co. of Brooklyn, 84 N.Y. 455; Cleveland v. New Jersey Steamboat Co., 125 N.Y. 299. ) If it can be shown that this degree of care was not exercised, a case for the jury would be presented.
The judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.
All concur.
Judgment reversed, etc.