Kiefer v. Brooklyn Heights Railroad

evidence of the defendant’s negligence and of the plaintiff’s freedom from contributory negligence. Plaintiff testified: “ As soon as the car went across the track and 'struck the second curve, it jogged me like that and I was thrown off and I didn’t know any more. It was not the ordinary jog of turning that I had experienced before. * * *. I knew of this bend in the. car tracks crossing Fulton street; I knew there was a bend there. And I knew where I was when the car got there. I knew the car was crossing those tracks. The car stopped just before crossing Fulton street, and then it did not start up with the bell in the usual way to go across, it started off very quick. He put on the ,power first and then he put on more, and it shot across the track so fasti didn’t have time to think where I was, and as soon as lie struck the second curve I was thrown. He put it on very quick. I didn’t see liow much he put on, but I could feel it. I didn’t have hold of anything. There wasn’t anything to take hold of.' * * * I didn’t notice a rail there, I had my back turned. I did not look to see whether there was anything to take hold of. * * * - I say this car was going fast across those tracks and I knew the bend was there, that that bend would swing the car around when it went around that fast. I didn’t have that thought about me. I didn’t "think much about that. I knew it was there and I did not take hold of anything.” One witness for the plaintiff, who observed the movement of the car from the sidewalk, testified that it came around “ pretty swift,” that it seemed “ to be going quick speed. My attention to the accident was first attracted by- the car coming around so fast, I said there will be something doing some day these cars going at such a rate.” Another witness testified that he observed the car and that it was going at the rate of nine miles an hour.

On behalf of the defendant evidence was introduced tending to prove that the plaintiff was intoxicated and that, the conductor requested hitn to step inside the car,'but that he refused to do so. Threé witnesses, passengers, who were standing up in the car, testified that they did not observe anything unusual about the motion of the car. It appeared that people were standing in the aisle and upon the platform from which the plaintiff fell, but it does not appear that the equilibrium of any other person was disturbed by the motion of the car in rounding the curve. While it is well set-

tied that it is not' negligence jpér sé for a passenger to occupy a position on the platform-of a crowded car if accepted as a passenger, such person must, be-held tó assume the ordinary risks incident to such a position. This proposition seems so clear as to- -require neither argument nor citation of authority to support it.- - - Every one knows that in the usual opez-ation of cars propelled by electricity there is inevitably a certain amount of jolting zand. swaying,- particulaz-ly when rounding curves. It wa,s incumbent upon the plaintiff to prove that lie was thz-own from the car by reason of some-unusual movement caused by its negligent operation, and in my jiidgment the chaz-acterization' of the speed of-the car aspretty swift,” and as “ about, nine miles an hour,” and of the znovement as not being an “oz-dinaz-y jog,” is insufficient to make a case, particulaz-ly where it appears that other pez-sons in the same situation as'-the plaintiff observed nothing unusual.; ,(Moskowitz v. Brooklyn Heights R. R. Co., 89 App. Div. 425 ; affd., 183 N. Y. 521 ; Ayers v. Rochester Railway Co., 156 id. 104.) According to the plaintiff’s own testimony he was doing nothing whatever to protect; himself, and it is just as likely that the ordinary movement incident to the z-ounding of a curve was the force that caused lzizn to fallas it is that any tintisual thing occuz-z-ed, but even if- I azn in ei-z-or in this regard, it must be clear that the plaintiff' has entirely failed .to prove freedom from contributoz-y negligénce. . The plaintiff knew all about the situation, he knew that he was in-a position that exposed him- to the danger of being thrown by any jolting or swaying of the car, and yet according to his. own testimony he did nothing whatever to protect himself, and did not even look to see whether thez-e was anything from which he could-obtain support. In the absence of any evidence tending to show the exercise on his part of the slightest care, I do not see how it is possible to hold1 that he met the burdenfof proving freedom from contributoz-y negligence.

• It, thez-efoz-e, follows that the judgment- .and order should be, revez-séd-" and a new trial gz-an.ted,. costs to.abide the events

Jenks, Hooker and Rich, JJ., eoncurrbd. ;

Judgment and order reversed and. now trial granted, costs to - abide the event. - ■