Gilmore v. Brooklyn Heights Railroad — 6 A.D. 117

Majority

p. 117

Annie A. Gilmore, Appellant, v. Brooklyn Heights Railroad Company, Respondent.

Headnote

Negligence—a brake suddenly set free —presumption arising therefrom — credibility

In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, a street railroad corporation, the evidence of tbie plaintiff tended to show that the motonnan on one of the defendant’s electric cars left the brake on the front platform turned on tight, so as to hold the car in place, and that the injuries complained of were.sustained by the brake being suddenly set free in some unexplained manner, while the plaintiff, with other passengers, was making her way into the car.

Held,, that the question of the defendant’s negligence should have been submitted to the jury;

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That if it were assumed that the brake was set free by accidental contact with an incoming passenger, the question would still remain whether precautions should not have been taken to prevent such an occurrence. '

Where an accident is caused by a thing controlled or managed by the defendant, and is such as would not happen in the ordinary course of things, if those in control had used proper care, it aifords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of Care.

Where, from the circumstances of an accident, a presumption of negligence arises, and the defendant gives evidence which tends to overthrow that presumption, the issue relative to negligence must be submitted to the jury.

The question as to the credibility of witnesses who are employed by, and who testified on behalf of, a railroad corporation, in an action against it, is to be ■ decided by the jury.

Appeal by the plaintiff, Annie A. Gilmore, from a judgment of the City Court of Brooklyn in favor of the defendant, entered in the office of the clerk of said court on the 31st day of December, 1895, upon a dismissal of the complaint at the conclusion of evidence on hoth sides after a trial before the court and a jury, and also.from an order bearing date the 13th day of December,' 1895, and entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.

The action was brought to recover the damages resulting from . personal injuries sustained by the plaintiff while boarding a car operated-by the defendant, a street railroad corporation.

Rufus L. Scott, for the appellant.

Morris & Whitehouse, for the respondent.

We think that this is a case in which a jury should be allowed to determine whether the defendant was. or was not negligent, as charged in the complaint.

Near the Brooklyn terminus of the New York and Brooklyn bridge is a car stand consisting of six tracks, upon which electric cars -rim for the special convenience of travel to and from the bridge. The plaintiff was injured,' according to her statement, at this stand, while attempting to take passage in a car operated by the Brooklyn Heights Railroad Company, on the Greene and Gates "avenue line. Her testimony in substance is, that the car came in and was brought to a standstill there, in readiness to receive pas

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sengers ; that the motorman left the car and went outside toward the rear ; that she, in company with a great crowd, tried to step in on the front platform, when the brake flew around and struck her on the cheek, whereupon a man caught her, took her into the car and gave her a seat, after which she remembered nothing until the car reached Franklin avenue-; that she then realized for the first time that she had been hurt very much, finding that her dress was covered with blood and fearing that she had lost her eye; but that before leaving the car she-was able to see its number which she confidently declared was 904.

The defendant introduced evidence indicating that no such accident as that described by the plaintiff had ever come to the knowledge of the officers or employees of the railroad company. There was testimony to the effect that no car numbered 904 was used on the line at the time ; while the conductor of car No. 905 which did leave the bridge at about the hour when the plaintiff says she was hurt, -denies ever having seen her on the Gates avenue line or anywhere else that he can recollect. The motorman of car No. 905 was not called, the assistant to the general superintendent of the railroad company stating that he understood he was in Boston and that he could not get him.

For the purpose of this appeal, we must assume that the plaintiff was truthful and that her narrative of what had occurred was substantially correct. Upon this assumption, the proof indicated that the motorman had left the brake on the front platform turned on tight, so as to hold the car in place, and that it was suddenly set free in some unexplained manner, as the passengers, including the-plaintiff, were making their way into the car. In the prudent operation of a street railroad, such an occurrence endangering the safety of those who accept the invitation which is held out to them to become passengers, is unusual, to say the least; and the circumstances bring the case .within the rule that where the thing which causes an accident is controlled or managed by the defendant, “ and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care,, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” (Scott v. London Dock Co., 3 Hurlst. & Colt, 596; Bridges v. North London

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Ry. Co., L. R. [6 Q. B.] 377, 391; Mullen v. St. John, 57 N. Y. 567 ; Volkmar v. Manhattan Ry. Co., 134 id. 418.)

It was the duty of the railroad company to exercise at least ordinary care to prevent injury to the plaintiff from any appliance which she had to pass upon the platform by means of which passengers were allowed and evidently expected to enter the car; and we think that the quick and violent motion of the brake handle, as described by the plaintiff, raised a presumption of negligence on thn part of the defendant which the company was called upon to explain. The description of the brake and the manner of operating it suggest the probability that its forcible action may have been caused by the accidental contact of some of the incoming passengers with the handle or with the catch on the floor of the platform which worked into the ratchet at the lower end of the brake rod.' But even if the accident happened in this way, there would still be the question whether prudent management did not require that precautions should have been taken to prevent just such an occurrence.

The circumstances of the injury being such as to give rise to a presumption of negligence in the absence of a satisfactory explanation, it follows that the case should have gone to the jury. While the defendant gave evidence tending to overthrow the presumption, it was for the jury to pass upon the weight and effect of that evidence as matter of fact, and the trial court could not pronounce it conclusive as matter of law. Furthermore, the credibility of the defendant’s witnesses, who were in the service of the railroad company, was peculiarly a question for the jury. (Volkmar v. Manhattan Ry. Co., supra.)

The judgment and order should be reversed and a new trial should be granted, with costs to abide the event.

All concurred.

' Judgment and order reversed and new trial granted, costs to abide the event.

Cases cited

Mullen v. St. John 57 N. Y. 567 N.Y. Comm'n App. p. 120