Black v. Second Avenue Railroad — 44 A.D. 333

Majority

p. 333

Rasmus Black, Respondent, v. The Second Avenue Railroad Company, Appellant.

Headnote

Negligence—passenger injured while alighting from, a, street ear — verdict set aside as against the weight of evidence.

In an action to recover damages for personal injuries the plaintiff testified that, upon hoarding one of the defendant’s street cars, the conductor requested him to take a tool chest which he had with him to the front platform; that he did so, remaining there; that, upon approaching a certain street, he told the conductor to stop the car, which he did at the street crossing, and that; while the plaintiff was attempting to alight, the car' suddenly started up again, throwing him to the ground and causing him to sustain the injuries complained of. The testimony of the plaintiff was in part corroborated by but one witness, who, in some respects, contradicted him, while six disinterested witnesses testified, on behalf of the defendant, that the accident occurred before the car had reached the crossing, which was the usual stopping place

Held, that a verdict in favor of the plaintiff was contrary to the weight of evidence and should be set aside.

' Rumsey and Ingraham, JJ., dissented.

Appeal by the defendant, The Second Avenue 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 New York on the 24th day of March, 1899, upon the verdict of a jury for $2,000, and also from an order bearing date the 27th day of March, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

The action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff in alighting from one of defendant’s cars near Sixty-eighth street and First avenue in the city of New York.

Edward D. O’Brien, for the appellant.

J. Brownson Ker, for the respondent.

The plaintiff, a carpenter, thirty-six years of age, on the 14th of April, 1897, between ten and eleven o’clock in the forenoon, boarded one of the defendant’s north-bound cars at Thirtieth street and Sec

p. 334

ond avenue to go to Sixty-eighth street. He had with him at the time a tool chest, weighing fifty pounds or more, which, when he boarded the car, he was directed by the conductor to take to the front platform. This he did, remaining with it until the car approached the Sixty-eighth street crossing, when, in attempting to alight from the car, he either fell or was thrown from it to the street, and sustained the injuries of which he complains. He. had a verdict, and from the judgment entered thereon, and from ah order denying a motion for a new trial made on the minutes, the defendant has appealed.

Having reached the conclusion .that the judgment must be reversed on the ground that it is against the weight of evidence, it is proper to refer somewhat in detail to the testimony of the different witnesses sworn upon the trial.

The plaintiff testified that when the car was between Sixty-seventh and Sixty-eighth streets he requested the driver to stop at the latter street, and that after the car had passed about five feet beyond the north crossing of Sixty-eighth street it came to a full stop; that he then took his tool chest and attempted to alight, and while he was in the act of so doing, with one foot on the ground and the other on the step of the car, it was suddenly, without any warning to him, started, by reason of which he was thrown,to the-street and injured. Only one witness, Morris Jacobs, was sworn to corroborate the.plaintiff as to how the accident occurred, and while he corroborates him in some respects, he also contradicts him in others. A careful Consideration of the testimony of the witness Jacobs has satisfied us that he either did not see the accident at all, or else had so little knowledge of how it occurred, that he was unable to give an intelligent statement of it, In fact lie admitted that he did not “ see much ” of it, but that he did remember seeing the plaintiff hanging on to the dashboard of the car with one hand and that “ he had one leg on the step, and the other one was not on the ground, * * * and he got thrown right over by the car moving just a few steps.”

In opposition to this, testimony, the defendant swore six disinterested witnesses, all of whom testified in direct opposition to the plaintiff'and his witness as to the location of the car at the time the accident occurred, and two of them in direct opposition to the plaintiff as to what took place at or immediately preceding his injury.

p. 335

Hession, the driver of the car, who at the time of the trial was not and for nearly two years prior thereto had not been in the employ of the defendant, testified that when the car was between Sixty-seventh and Sixty-eighth streets, the plaintiff said to him, “ ‘ I want to get off,’ at the same time he commenced to pick up his box; I said, ‘You hold on until this car comes to a stop; I will stop on the other side for you; ’ ” that he then commenced to put on the brake for the purpose of stopping the car, and as its speed was slackened the plaintiff stepped or slipped from, it and fell; that he then stopped the car as soon as he could, and when it came to a full stop it was several feet south of -the north crossing of Sixty-eighth street. This witness also testified that there was then standing on the front platform of the car with him, one Dr. Frid'ler, who saw the accident and knew how it occurred. Dr. Fridler was produced and he testified that he was at the time on the front platform of the car; that when near Sixty-eighth street the plaintiff told the driver he wanted to get off at that street; that the driver commenced to check the speed of the car, and as he did so, “ the man got his box with his arm, and the, driver told him the car would be at a standstill when he come to the crossing; but the car was in motion, and all at' once the man slipped backward ; ” that the car when it came to a standstill was south of the crossing; that he examined the plaintiff and he was not seriously injured. Scott, the conductor of the car, who was not at the time of the trial in the employ of the defendant, testified that he was on the rear platform of the car; that his attention was attracted by the fact that the car had suddenly come to a stop between the crossings, which was an unusual thing; that he thereupon got off the car and saw the plaintiff lying in the street; that the car then was south of the crossing, which fact he called to the attention of a police officer by the name of Waddell. The police officer Waddell was produced and testified that his attention was called to the accident ; that he saw the plaintiff when he was helped to his feet, and that the car was then south of the north crossing of Sixty-eighth street. Two other witnesses, who at the time were passengers on the car, testified that when the car came to a full stop it had not passed the north crossing of Sixty-eighth street.

When the testimony is thus considered and that' of the plaintiff

p. 336

Contrasted with that of the defendant, it at once becomes manifest that the jury cbnld not have reached the conclusion which they did from a fair consideration of it, and that their.verdict is not based upon the evidence, but is rather the expression of passion, prejudice or mistake. The.location of the car at the precise time the plaintiff fell was a vital issue in the case. If it had not then reached the north crossing of Sixty-eighth street, the usual place for north-bound cars to stop, and where the plaintiff had been told this car would stop, then the plaintiff, under his own proof, and under the allega^, tions of the complaint, was not entitled to recover. As to this, as ■ we .have already seen, we have six disinterested witnesses all testifying to the fact that when the accident occurred the car was south of the north crossing of Sixty-eighth street, and this testimony was met by what ? By the testimony of the plaintiff himself, one testifying under the influence of self-interest, and one other witness, whose testimony in many respects tends to contradict the plaintiff as much as it does to support him. Under such circumstances the duty of the court seems clear, and that is to set aside the verdict and order a new°trial. It is true the verdict of a jury is entitled to great respect, and ought not to be lightly interfered with, but when the court can see, as it can in this case, that in justice has likely been, done to one of the parties; then it never hesitates to set aside a verdict and direct that the issues involved'be resubmitted to another jury. (Kaare v. Troy Steel & Iron Co., 139 N. Y. 369 .)

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event. ’ " ;

Van Brunt, P. J., and Barrett, J., concurred; Rumsey and Ingraham, JJ.,, dissented.

Judgment reversed, new trial ordered, costs to appellant to abide event.

Cases cited

Kaare v. Troy Steel & Iron Co. 139 N. Y. 369 N.Y. 1893-10-03 p. 336