Hyperlawhypertext legal databasebeta Morrison v. Broadway & Seventh Avenue Railroad 130 N.Y. 166

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Morrison v. Broadway & Seventh Avenue Railroad

130 N.Y. 166 Court N.Y. Decision date 1891-12-01 English

Delivered by Bbadley, J.

Contents

Majority

p. 166
George W. Morrison, Respondent, v. The Broadway and Seventh Avenue Railroad Company, Appellant.

Headnote

Plaintiff, a man of seventy years, without anything in his hands to impede him, signalled a car which was passing- at the usual speed on defendant’s road on a crowded street; the brake being applied, the car slowed up but did not entirely stop; plaintiff caught hold of the rail of the rear platform with both hands and as he put his feet on the step the brake was . relaxed, the car started with a sudden jerk, his feet were thereby thrown from the step, he -was dragged along for a distance and was injured. In an action to recover damages, held, that the question of defendant’s negligence and of plaintiff’s contributory negligence were questions of fact, and so, were properly submitted to the jury; that the fact that the car was moving slowly when plaintiff attempted to get on did not establish contributory negligence as matter of law.
Hayes v. 42d St., etc., R. R. Co. ( 97 N. Y. 259 ), distinguished.
(Argued October 19, 1891;
decided December 1, 1891.)
Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 16, 1890,' which affirmed a judgment in favor
p. 167
of plaintiff, entered upon a verdict and affirmed an order denying a motion for a new trial.
This action was brought to - recover damages for injuries received by plaintiff, a man seventy years of age, while attempting to get on board one of defendant’s cars in the city of New York.
The facts, so far as material, are stated in the opinion.
Hoot da Clarice for appellant.
There was no negligence on the part of the defendant. (Hayes v. F. S. S. R. R. Co., 97 N. Y. 259 .) Nor can the verdict be sustained upon the-theory that the defendant’s employes were negligent in rescuing the plaintiff, after he had fallen and while he was being-dragged. (Rh ing v. B. & S. A. R. R. Co., 25 N. Y. S. R. 563.)
Edwin H. Leavitt for respondent.
The facts show that plaintiff did not voluntarily assume any risk whatever in attempting to board the car while in motion. (Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297 ; Brassell v. N. Y. C. & H. R. R. R. Co., 84 id. 241; Eppendorf v. B. C., etc., R. R. Co., 69 id. 195.) Plaintiff was not guilty of any contributory negligence which would have warranted the court in dismissing the complaint. (Eppendorf v. B. C., etc., R. R. Co., 69 N. Y. 195 , 196; Beach on Cont. Neg. 296, 301, 302; Munroe v. T. A. R. Co., 18 J. & S. 114; Bucher v. N. Y. C. & H. R. H. R. Co., 98 N. Y. 128 ; Morrison v. E. R. Co., 56 id. 302; Filer v. N. Y. C. R. R. Co., 49 id. 47; Van Ostran v. N. Y. C. R. R. Co., 35 Hun, 590 ; Hunter v. C. & S. V. R. Co., 112 N. Y. 376 ; Spaulding v. Jarvis, 32 Hun, 621 ; Payne v. T., etc., R. Co., 83 N.Y. 572 ; Kain, v. Smith, 89 id. 378, 384; Johnson v. H. R. R. R. Co., 20 N. Y. 65 ; McDonald v. L. I. R. R. Co., 116 id. 546.) The judgment must stand if there was evidence proper for the consideration of the jury, and sufficient in some reasonable view to induce the verdict. (Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 298 ; Bevier v. D. & H. C. Co., 13 Hun, 254 ; Black v. B. C., etc., R. R. Co., 108 N. Y. 640 ; Munroe v. T. A. R. Co., 18 J. & S. 114; Samson v. R., etc., R. R. Co.,
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48 Hun, 113 ; Butler v. C. F. S., etc., R. R. Co., 17 N. Y. S. R. 565; Holbrook v. U. & C. R. Co., 12 N. Y. 236 .) It was not error to admit the question as to the probability or improbability of the plaintiff’s arm getting well. Evidence of experts as to the future consequences which are reasonably expected to follow the injury is competent. (Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305 , 306; Bateman v. N. Y. C. & H. R. R. R. Co., 47 Hun, 429 ; Montaugh v. N. Y. C. & H. R. R. R. Co., 49 id. 456, 462 ; Curtis v. City of Rochester, 18 N. Y. 534 ; Sheehan v. Edgar, 58 id. 631 ; Buell v. N. Y. C. R. R. Co., 31 id. 320; Matteson v. N. Y. C. R. R. Co., 35 id. 487, 492; Johnson v. B. & S. R. R. Co., 6 N. Y. Supp. 113 ; Feeney v. L. I. R. R. Co., 116 N. Y. 376 , 382; McSwyny v. B., etc., R. Co., 7 N. Y. Supp. 456 .) The refusals to charge were proper. (Salters v. U., etc., R. R. Co., 88 N. Y. 49 ; Morrison v. N. Y. C. R. R. Co., 63 id. 643; Newall v. Bartlett, 114 id. 399; Burdick v. Freeman, 120 id. 425.) The denial of the motion to set aside the verdict was not error. The only ground that needs discussion on this point is as to whether the damages were excessive, and nothing in this case warranted granting the motion on that ground. (Sedg. on Dam. 601; Althoris v. Sharp, 13 Wkly. Dig. 478 ; Kiff v. Youmans, 20 Hun, 123 ; Sloan v. N. Y. C. R. R. Co., 1 id. 540; Deck v. N. Y. C. R. R. Co., 8 id. 286; Jennings v. Van Shaick, 13 Daly, 7 ; Handl v. N. Y. C. R. R. Co., Id. 378; Valentine v. B. & S. A. R. R. Co., 16 N. Y. S. R. 602; Minic v. City of Troy, 19 Hun, 253 ; 83 N. Y. 514 ; Peck v. N. Y. C. R. R. Co., 70 id. 587 ; Oldfield v. N. Y. C. R. R. Co., 14 id. 310.)

The personal injury to the plaintiff resulted from his attempt to get on the defendant’s car. And the questions presented are whether the conclusion was warranted from the evidence that the injury was occasioned by the negligence of the defendant, and that it was not attributable to any negligence on the part of the plaintiff. It appears that he signalled Ms purpose to take the car, the brake was applied,

p. 169
and the motion of the car was slackened although not entirely stopped ; that the plaintiff then proceeded to get aboard and for that purpose he with both hands caught hold of the rail at the rear platform, and as he put one foot or both feet on to the step the brake was relaxed and the car started with a sudden jerk, by which his foot or feet were thrown from the step and he, with his hands holding onto the rail, was dragged about one hundred and twenty-five feet. The questions arise upon exception to the denial of the defendant’s motion for dismissal of the complaint on the grounds that the plaintiff was not free from contributory negligence, and that the plaintiff’s injury was not caused by negligence of the defendant. The fact that the car was in motion when the plaintiff proceeded to step on it was one for consideration on the question whether he voluntarily assumed the hazard of safety in getting on board of it at the time he attempted to do so. The conclusion was warranted that the speed of the car was then reduced to that given by bringing the horses to a walking gait. The slowness of the motion was aided by the application of the brake. The plaintiff carried 'nothing to impede his movement in getting on the car. He guarded his attempt by taking hold of the rail to which he held until the car was stopped after dragging him the distance mentioned; and when he so grasped the rail he planted one or both of his feet on the step of the platform. Assuming as here we must, that such were the facts, he was not necessarily chargeable with contributory negligence; and that question was properly submitted to the jury. (Eppendorf v. B. C. & N. R. R. Co., 69 N. Y. 195 .) The negligence of the defendant was not in the fact that the car failed to come to a full stop. If the motion of it had not slackened sufficiently to enable the plaintiff to safely do so the attempt to board the car wras his fault. But as the evidence permitted the finding that it had eased up sufficiently for the purpose, the conclusion might properly follow that the fault was with the defendant in defeating the opportunity of the plaintiff to safely get aboard by suddenly jerking the car into more rapid motion while he had only partially accomplished it. By the application of the
p. 170
brake and bringing the car to a slow movement upon the plaintiff’s signal, he was induced to proceed as he did to get into it, and he was entitled to a fair opportunity to get firmly on the platform of the car. This was denied him by too soon relaxing the brake and suddenly with a jerk pulling the car into a more rapid motion, resulting in the consequences which followed. The question whether the defendant was chargeable with negligence was one of fact properly submitted to the jury. (Eppendorf v. B. C. & N. R. R. Co., supra; Black v. Brooklyn City R. R. Co., 108 N. Y. 640 ; Nichols v. Sixth Av. R. R. Co., 38 id. 131; Keating v. N. Y. C. & H. R. R. R. Co., 49 id. 673).

The fact that the plaintiff with accelerating speed was dragged as, and the distance, he was, until the car -was stopped to relieve him, was a circumstance tending to prove that the attention due to persons who are properly proceeding to get on a street car may not have been given to the plaintiff in this instance. There is, however, some evidence tending to prove, or which permitted the inference that the embarrassing position of the plaintiff was prolonged by the failure of the conductor to make the driver understand the signal he intended to give him to stop the car.

In view of the facts in Hayes v. Forty-second Street, etc. R. R. Co. ( 97 N. Y. 259 ), and those which the jury were permitted to find in the present case, that case has not necessarily any essential application to this one. Bor does it in legal effect qualify the doctrine of the Eppendorf case, to which it makes no reference-. Bo other question requires consideration.

The judgment should be affirmed.

All concur.

Judgment affirmed.

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