Zimmerman v. Long Island Railroad — 14 A.D. 562

Majority

p. 562

Johanna Zimmerman, Respondent, v. The Long Island Railroad Company, Appellant.

Headnote

Negligence—vibration of a train which throws a passenger off the step of u> cm\ in the dark, where there is no platform — that an item of damages is not within the issues should be called to the attention of the court — -costs.

A passenger riding in an open railroad car, having seats crosswise of it, was carried beyond the platform of a station, and when the train stopped was hallooed to by the trainman to “hurry up,” whereupon she stepped on the running board on the side of the car, when there was a sudden jerk of the car and she fell to the ground and was injured, about ten o’clock in the evening, at a place where there was no light and no platform. The evidence -tended to show that the jerk took place because of the fact that vacuum brakes were only used on the cars on the front end of the train, the cars in the rear being thus left to settle back and to slack up again.

Held, that, considering the vibration of the car, the haste with which the passengers were invited to alight, the darkness and the absence of any platform, the question of the negligence of the defendant was properly submitted to the jury. The accident occurred on August 22, 1891, and the plaintiff’s husband died November 12, 1893. She testified that after her husband’s death she paid for help a sum not exceeding five dollars per week. No allegation of this character was made in the complaint, but the defendant did not object to the evidence upon that ground.

Held, that as it was doubtful whether this was a proper item of damage, the verdict should be reduced by its amount, but as it was the duty of the defendant to have directed the attention of the court to the fact that this claim was not within the ¡allegations of the complaint,, that the reduction must be made, without denying the plaintiff costs.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor - of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of October, 1896, upon the verdict of a jury, and also from an order, bearing date the 12th day.of October, 1896, and entered in the said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

W. G. Beecher, for the appellant.

F. E. Dana, for the respondent.

On the evening of August 22, 1891, at Manhattan Beach, the. plaintiff became a passenger, destined for Parkville, upon the

p. 563

defendant’s train of cars. When the train stopped at Parkville the plaintiff, in proceeding to alight, fell and received the personal injuries which constitute the subject of her claim for damages. The train was a long one, consisting of thirteen loaded passenger cars. The plaintiff Avas in the rear car, which was an open one, with seats crosswise of it. The train did not stop at the platform of the station at Parkville, but went on beyond and west of it, crossing Avhat is knoAvn as the Culver railroad. When the train was coming to a stop the passengers were notified by some trainman on the running board of the car, who hallooed “ hurry up.” The car stopped; the plaintiff, sitting on the outside, got up and stepped on the running board, and then, as the evidence tends to prove, there was a sudden jerk of the car, and she fell to the ground and receÍAred an injury. There is not much controversy in the evidence about the facts. This occurred about ten o’clock in the evening. There was no light and no platform at that place. The running board was about two and a half feet from the ground, and below that was another step in like manner extending the length of the car. The reason given by the defendant for passing by the station platform was that there was an up-grade going west until the Culver road was passed, and that, as the train Aras a heavy one, the engine very likely would be unable to start the train if stopped on the grade. And the reason given by the evidence on the ¡Dart of the defendant for the jerk or vibration of the car after it first came to a stop was that the vacuum brake in use oh the train was on only some of the cars nearest the front end of the train ; that it Avas not practicable to apply it to the cars further in the rear, and as the. consequence, Avhile the cars supplied with brakes were held to their places Avhen the train stopped and the cars had come together, those having no brake connected with them would vibrate or slack back the length of the couplings and slack up again. Those conditions very likely may have been the cause of the jerking of the car Avhicli caused the plaintiff’s fall and injury. The. haste in movement Avhich the passengers were invited to make, without any warning of the danger which might be occasioned by the vibration or rebounding of the car, the darkness and the absence of any platform to step on to, were circumstances which permitted the jury to find that the injury of the plaintiff was attributable to thenegli-.

p. 564

g.ence of the defendant, and that the plaintiff was free from .the imputation of contributory negligence.

The plaintiff’s • husband died November 12, 1893. There was some evidence given by the plaintiff to the effect that since her husband’s death she had paid out something for help, the outside figure of which was five dollars per week. . No such matter was alleged in the complaint. In making: objection to the introduction of the evidence, the defendant’s counsel did not specify the want of allegation in the complaint as a ground for it, or anything to that effect ; hence, his objection on that ground is not available as error. But, as there is some doubt about the sufficiency of the evidence to support a recovery for the moneys paid out by the plaintiff for help and assistance at her home, defendant’s exception taken to the submission of that matter to the jury is entitled to such consideration as to render it prudent to exclude from - the recovery the amount which the jury could have allowed for such cause. But as the question would have been obviated if the attention of the court had been called to the' fact that no such claim was within the allegations of the complaint, the plaintiff should have costs if she consents to the deduction and consequent modification. The trial was held October 9, 1896, two years and about eleven months after the husband’s death.

The judgment and order should be reversed and a new trial granted, costs to abide the event, unless the. plaintiff stipulates to deduct from the recovery,, as of the time of the verdict, $755, and in that event.the judgment be so modified, and, as modified, affirmed, with costs to the plaintiff.

All concurred, except Goodrich, P. J., not sitting.

Judgment and order reversed and new trial granted, costs to abide the event, unless plaintiff stipulates,, within twenty days, to deduct from the recover}', as • of the time of the verdict, $755, and in that event the judgment is so modified, and, as modified, .unanimously affirmed,' wifh costs to the plaintiff.