Opinion
December 30, 1910.
James W. Carpenter, for the appellant.
Henry E. Heistad, for the respondent.
Present — HIRSCHBERG, P.J., WOODWARD, JENKS, BURR and RICH, JJ.
As plaintiff, a passenger upon one of defendant's cars, was attempting to alight at a transfer station, the car was started and she was thrown to the ground and seriously injured. The evidence shows that the proper signal was given to the motorman to start the car, but the parties differ as to who gave such signal. The only evidence on plaintiff's part relating to this question is that of her daughter, who testifies that she had alighted from the car and was assisting her mother to get off, when she heard two bells struck. She cried out, "Wait a minute," looked around and saw the arm of the conductor raised, his hand being near to the bell cord. This was after the signal of two bells for starting the car had been given. She does not testify that she saw any one ring the bell, or to anything tending to show who did ring it, until after she had heard the bell strike and called out to the conductor to wait. The conductor testifies that he did not give the signal to start, but that it was given by a passenger named Lewis, who was standing at his side on the rear platform of the car; that as the car started he heard a scream, and immediately gave one bell as a signal to stop the car. It may be that when plaintiff's daughter saw the conductor's arm extended, as described by her, it was after the signal to start the car had been given, and at the time when the conductor was giving the signal to stop. Plaintiff's case is, therefore, barren of evidence showing who gave the signal that started the car. In addition to the conductor's testimony, defendant produced two witnesses who were riding on the rear platform, who testified that the conductor did not give the signal to start the car, and that it was given by a passenger standing on the platform. Defendant contends that the starting of the car was an unauthorized act of a fellow-passenger of plaintiff, which did not impose liability on the defendant, and cites McDonough v. Third Avenue Railroad Co. ( 95 App. Div. 311). I do not regard that case as an authority, because it appeared that there was no suggestion that the conductor had reason to apprehend that a passenger would pull the bell, and no suggestion that the conductor was not properly attending to his duties; while in the case at bar it distinctly appeared that there was reason to apprehend the possibility of the accident that occurred. The conductor himself testified that the bell had been pulled twice on that trip by Lewis or some other passenger as a signal to the motorman before the plaintiff was injured, and that at the time she was alighting from the car he was counting transfers and giving no attention to anything else. He was asked: "Q. Wasn't is your duty to watch people getting off the car? A. I didn't think it necessary; I was counting transfers. Q. Wasn't it important to see that passengers got off fully? A. Yes. Q. But you were not doing it, were you? A. No; I was counting transfers." This evidence removes the case at bar from the operation of the rule declared in the McDonough case.
The learned trial court charged the jury: "It is the duty of the conductor, as I said before, to see that people have reasonable opportunity to alight, and he was the man that was stationed on the car for that very purpose, and if he neglected his duty, and allowed some one else to pull the bell, that in itself would be negligence. It was his duty to see that she did have a reasonable chance to get off the car. So if you are satisfied that she fell by reason of the car starting up before she had an opportunity to alight, even though Lewis did pull the bell, that would not relieve the railroad company of its negligence if you find that the conductor did not do his duty in seeing to it that she had a reasonable chance to get off." No exception was taken to this charge, nor was the court requested to charge otherwise. No reversible errors are shown (the objection to the evidence of the lay witness was not as to its competency), and the judgment and order must be affirmed, with costs.
Judgment and order of the Municipal Court unanimously affirmed, with costs.