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Hirschberg v. Brooklyn, Queens County & Suburban Railroad

134 A.D. 629 Court Second Department, Decision date 1909-11-19 English

Delivered by Miller, J.:

Contents

Majority

p. 629
Henry Hirschberg, Respondent, v. Brooklyn, Queens County and Suburban Railroad Company, Appellant.
Second Department,
November 19, 1909.

Headnote

Appeal from order granting new trial after nonsuit—railroad — negligence — injury to passenger boarding street car.
An order granting a new trial after a nonsuit at the close of the plaintiff's case will be sustained if the evidence raised a question for the jury.
A passenger, whether man or woman, boarding a street car must be given an opportunity to get into a position of security.
Where a car slowed down and nearly came to a stop on the signal of a person desiring to take passage, but suddenly accelerated its speed at a time when he had both feet on the running board, had hold of the stanchion and was about to step inside the car, causing him to slip and fall, the defendant’s negligence is for the jury.
Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 21st day of December, 1908, granting the plaintiff’s motion for a new tidal.
D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
Don R. Almy, for the respondent.

This is a negligence action. The complaint is that, as the plaintiff was attempting to board one of the defendant’s cars, it started before he had got in a position of safety. At the close of the plaintiff’s case the court granted a nonsuit. The court denied the plaintiff’s motion to reopen the case to put in additional evidence, but granted a new trial for the purpose of enabling the plaintiff to do that; and the complaint of the appellant on this appeal is that" the trial court should not grant a new trial solely for the purpose of giving a party another chance to present his evidence. We think, however, that the order may be sustained for the reason that the plaintiff’s evidence presented a question for the jury.

p. 630
The plaintiff testified in substance that, as the car approached him, he signaled the motonnan to stop, whereupon the car commenced to slow down and, as it reached him, had nearly come to a stop; that, while thé car Was thus moving very slowly and almost coming to a stop, he took hold of the stanchion, got both feet on the running board and was about to step up inside the car when the conductor rang the bell, the car started, his foot slipped and he fell and was dragged some distance.

The nonsuit was evidently granted upon the ground that there was no proof of the defendant’s negligence, of any unusual movement of the car upon starting; but the negligence complained of was in accelerating the speed of the car at all before the plaintiff had got securely aboard. It has been held that the starting'of a car before a woman passenger has obtained a seat presents a question for the jury. (Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13 ; affd., 164 N. Y. 586 ; Morrow v. Brooklyn Heights R. R. Co., 119 App. Div. 22 .) Whatever be the rule in case the passenger is a man, he must at least be given an opportunity to get into a position of security; and the starting of the"car or accelerating its speed while the passenger is still attempting to step up into the car and before he has got a firm footing presents a question for the jury. It is not claimed that it is contributory negligence as matter of law to attempt to board a street car just coming to a stop. (See Pfeffer v. Buffalo R. Co., 4 Misc. Rep. 465 ; affd., 144 N. Y. 636 .; Sexton v. Metropolitan Street R. Co., 40 App. Div. 26 ; Mulligan v. Metropolitan Street R. Co., 89 id. 207; Morrison v. B. & S. A. R. R. Co., 130 N. Y. 166 .)

The order should be affirmed.

Hirschberg,P. J., Burr and Rich, JJ., concurred; Woodward, J., concurred in result.

Order affirmed, with costs.

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