Schwartz v. New York City Railway Co. — 55 Misc. 214

Majority

p. 214

Jacob Schwartz, Respondent, v. The New York City Railway Company, Appellant.

(Supreme Court, Appellate Term,

June, 1907.)

Headnote

Carriers — Carriage of passengers — Liability for personal injuries to passengers — Actions by passengers for personal injuries — Instruc- . tions — As to taking on passengers.

In an action against a street railway company to recover damages alleged to have been sustained by the plaintiff in attempting to board one of defendant’s cars which had been brought to a stop and which he claims was suddenly started while he was attempting to board it, where the defendant contends that the car bad not

p. 215

stopped when plaintiff attempted to board it, and that his injuries were sustained in attempting to board it while it was in motion, it was error for the justice to charge the jury that it was the duty of the company to give the man a fair and reasonable chance to get aboard the car, since the jury might have inferred therefrom that the defendant was negligent in not bringing the car to a stop so that the plaintiff might have a fair and reasonable chance to get aboard it.

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, fifth district, borough of Manhattan.

William E. Weaver, for appellant.

House, Grossman & Vorhaus, for respondent.

The plaintiff has - recovered a judgment awarding him damages which he claims he sustained through the alleged negligence of the defendant. The plaintiff claimed the car had been brought to a stop and, while in the act of attempting to board it, it was suddenly started and that he was thrown and sustained the injuries in reference to which he testified. The defendant contended that the car was in motion; that it had not come to a stop and that the plaintiff ran after it and, in attempting to board it while it was in motion, was injured. The learned trial justice charged the jury as follows: “As a matter of law it was the duty of - the company to give the man a fair and reasonable chance to get aboard the car; and if, without his fault, the accident occurred through the negligence of the defendant, your verdict would have to be for the plaintiff.” To this part of the charge the defendant duly excepted. We think that this part of the charge was erroneous and that a new trial should be ordered. The rule laid down by the learned trial justice was too broadly stated. The duty, which the justice declared the defendant was under, did not arise until the car had been brought to a stop or the plaintiff had been invited to board it. The jury were justified .in drawing the inference, from the charge made by the trial justice, that the defendant was negligent in not bringing the car to a stop so that the plaintiff might have “ a fair and reasonable

p. 216

chance to get aboard the car.” In view of the issue between the parties as to the manner in which the accident happened, we think that the error committed was prejudicial to the defendant.

Gildersleeve and Platzeik, JJ., concur.

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