Loder v. Metropolitan Street Railway Co. — 84 A.D. 591

Majority

p. 591

Victorine A. Loder, Respondent, v. Metropolitan Street Railway Company, Appellant.

Headnote

Negligence—a person waiting newt' a street car track for a car struck by another car approaching from behind, —[when the questions as to negligence and contributory negligence are for the jury.

In an action brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, a corporation operating a street railway in the city of New York, it appeared that on the day of the accident the plaintiff stood facing northerly, near the defendant’s tracks, at a point where she expected that a south-bound car, which she intended to' board, would stop and start on its return journey; that while she was standing there a north-bound car, which had passed south beyond that point, approached her from behind without warning and struck her.

It also appeared that until a month or six weeks prior to the accident the southbound cars stopped where the plaintiff was standing or twenty feet north of that spot, but that after that time their stopping point was located some distance south thereof. _

The motorman of the car testified that he noticed the plaintiff standing close to the track, but supposed that she was far enough from the track to be out of

p. 592

danger. The fender and dashboard passed the plaintiff without touching her, but she was struck by the handlebar on the body of the car. The conductor testified that the handlebar projected no further than the dashboard, and it was argued from this that the plaintiff must have leaned toward the car after the fender and dashboard passed her. Two other witnesses, one of Whom was called by the defendant, testified, however, that she did not change'her position at all.

Held, the questions of negligence and of contributory negligence were properly submitted to the jury, and that a judgment entered upon a verdict in favor of the plaintiff should be affirmed. .

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plain: tiff, entered in the office of the clerk of the county of Kings on the 9.th day of October, 1902, upon the verdict of a jury for $5,500," and also from an order entered in said clerk’s office on the 9th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Bayard, H, Ames and Henry A. Robinson \Oharles F. Brown with them on the brief], for the appellant.

Alfred J. Gilchrist, for the respondent.

The plaintiff was struck and knocked down by a trolley car of the defendant, coming from the south, as she. was standing near the defendant’s track opposite the entrance to the New York and Brooklyn bridge in the borough of Manhattan: Her back was toward the car. which, struck her,, as she was looking northward up Center street as she testifies, waiting for a Madison avenue car to come down to the point where she was, at which point she expected to take it and go uptown. -She states that the Madison avenue cars which she had previously taken there had not gone south of the place where she was standing. “ I had found them Coming down there,” she says, “ and stopping.” She declared that she did not know that the cars passed beyond' that point and went down as far as the Post Office. “ I thought that they all stopped at that point and returned.” There is other evidence in the case to the effect that a month or six weeks before the- accident the Madison avenue cars began, to run south of the bridge entrance down to the Post Office.

p. 593

• The appellant charges the plaintiff with contributory negligence in standing with her back turned toward the approaching car, so •close to the track that the car struck her. She accounts for her position, however, by her knowledge of the previous practice of the defendant in operating this portion of its line which led her to suppose that no cars were to be expected to approach from the south. "We think that the jury were entitled to take into consideration the plaintiff’s information in this respect as bearing upon her prudence under the circumstances, and that it cannot be held as matter of law that her conduct establishes contributory negligence. It is asserted in the appellant’s brief in reply that the place where the plaintiff stood was not where the Madison avenue cars previously stopped, but twenty feet further south. This variance is immaterial, however, for if she knew they were accustomed to stop twenty feet north of the spot where she was waiting she had no reason to suppose that any car would come up behind her from the south.

• The proof was sufficient to justify the jury in finding that the car approached the plaintiff and struck her without any warning from the motorman, although she was in plain sight. He testified that he noticed her standing close to the track, but that he did not stop the car before he reached her “ because she was far enough away from the track to clear the car.” As matter of fact, the fender and dashboard appear to have passed the plaintiff without touching her, but she was struck by the handlebar on the body of the car.' A •conductor in the employ of the defendant testified that the fender and dashboard were pretty near the same width and that the side or end rail of the car did not stand out beyond the dashboard. Hence, it is argued in behalf of the appellant that no duty was imposed upon the motorman to take any action to avoid injuring the plaintiff, inasmuch as she was. so situated that the front of the car passed her in safety and he could not foresee that some part of the car further back was likely to strike her. The implication is that the plaintiff must have leaned toward the car after the fender and dashboard passed her. Opposed to this inference is the statement of two witnesses (one of them called by the defendant) that she did not change her position at all. Their testimony may well have been regarded by the jury as irreconcilable with the testimony of the conductor that the rail which struck the plaintiff projected no further

p. 594

than the dashboard, and if so the jury were certainly at liberty to reject the latter statement, coming as it did from an employee of the defendant. On all the. evidence we think the plaintiff was entitled to have the jury pass upon the question whether the motorman, as the defendant’s agent, exercised due care in the management of the car to avoid injuring the plaintiff, under the circumstances of the accident. .

■ It does not seem necessary to discuss the numerous cases on the negligence-of street railway companies, cited in the briefs which are submitted on this appeal. The application of general principles serves to solve the principal questions and to lead to the conclusion' that there was enough to go to the jury on both branches of the case. The award of damages cannot be pronounced excessive, and there were no errors in rulings upon evidence or in the charge.

The judgment and order should' be affirmed.

Present;—Bartlett, Woodward, Hirsohberg and Hooker, JJ,

Judgment and order unanimously affirmed, with costs.