April Term, 1899.
Samuel D. Morris, for the plaintiff.
Charles F. Brown [ Henry A. Robinson with him on the brief], for the defendant.
The defendant operated a horse railroad on Twenty-third street, in the city of New York. On the day of the accident, the plaintiff and a man named Benson were standing on the southeast corner of Twenty-third street and Second avenue. One of defendant's cars came along from the east, moving westerly toward Second avenue. Plaintiff and Benson stepped forward toward the street, Benson signaling to the driver of the car by raising his hand, and the plaintiff hailing him by call. The movement of the car was thereupon slowed down to less than an ordinary walk. The plaintiff and Benson went forward and sought to get upon the front platform, Benson being in the lead. When plaintiff's foot was on the step, and before he got on the platform, the speed of the car was suddenly accelerated and it started forward with a jerk. This threw the plaintiff off; the car ran across his foot, necessitating its amputation. Such was the plaintiff's story, and substantially the same story was told by the only witness whom he produced as to the occurrence of the accident. The learned trial judge dismissed the complaint at the close of the plaintiff's case.
We think this disposition of the case was erroneous. It was not negligence, as matter of law, for the plaintiff to board the car when it was moving very slowly. ( Eppendorf v. B.C. N.R.R. Co., 69 N.Y. 195; Morrison v. B. S.A.R.R. Co., 130 id. 166; Distler v. Long Island R.R. Co., 151 id. 424.) The negligence of the defendant consisted not in failing to bring the car to a complete stop, but in accelerating its speed and starting it forward before the plaintiff had got safely on the car. ( Morrison v. B. S.A.R.R. Co., supra.) The ground on which the learned trial judge seems to have disposed of the case was that the evidence was insufficient to show that the driver was apprised of the intention of the plaintiff to board the car, and "after the driver admitted the first man that the railroad company was (not) under any obligation to have him look around to see if anybody else was getting on before he changed the speed of the car." Of course, if the driver was neither actually apprised, nor should, in the exercise of ordinary care, have been apprised, of the intention of the plaintiff and his companion to board the car, he was not chargeable with negligence in increasing the speed of the car while they were attempting to get on. But the fact that both the plaintiff and his companion hailed the car, and that immediately thereafter the car was slowed down, was sufficient to require the submission to the jury of the question whether the driver either knew or should have known that the parties were seeking to become passengers on the car. Nor are we inclined to admit the proposition that, as a matter of law, where one person is seeking to get upon a car, either stopped or slowed down for the purpose, there is no duty imposed upon the servants of the company in charge of the car to look and see if any one else is following and seeking to take advantage of the car being stopped to board it. ( Dean v. Third Avenue R.R. Co., 34 App. Div. 220. ) That question is generally one of fact, depending on the circumstances of the particular case. In this case, at least, it would seem that if the driver either knew or should have known that one of the parties intended to get upon the car, he knew or should have known that such was the intention of both. Still, the question was one for the jury.
Exceptions sustained and new trial granted, costs to abide the event.