Berry v. Utica Belt Line Street Railway Co.

This is a negligence action, twice tried ; the first trial resulted in a judgment of nonsuit, which was reversed by the Appellate Division, the learned court holding that the question of plaintiff’s contributory negligence should have been submitted to the jury; at the second trial there was a judgment for the plaintiff, entered upon a verdict, which was affirmed by the Appellate Division, with a divided court, and the appeal therefrom is now. before us.

Leah street is located in the southern portion of the city of Utica, and runs about east and west; Seymour avenue, upon which is located one part of the defendant’s railroad, runs north and south, and intersects Leah street at right angles.

On August 21st, 1901, late in the evening, plaintiff came west on the south side of Leah street to Seymour avenue and waited for a north-bound car; as the car approached from the south the plaintiff signaled it and walked north on Seymour avenue until he was within about ten feet south of the north crosswalk, where he attempted to board the car, which was moving, according to. his own testimony; “ real slow, just about moving.”

It is a conceded fact that there was an excavation on Leah

The plaintiff testified that he was possibly not more than .ten feet from the north crosswalk when attempting to board the car, and “ between the crosswalk and me was the barrier; I was facing along the sidewalk, up towards the car, and when the car came along I reached up and took hold of the car; put one foot on the step and started to get in the car; then I say the speed of the car was increased, and I was knocked off.”

The plaintiff had previously testified that as he mounted the step and started to get in the car the bell was given to go on. On cross-examination the plaintiff stated: “1 could not tell how far that barrier was away at the time I got on the car; I did not see it; possibly two or three or four feet, it may have been further, and it may not have been as far.”

The plaintiff further testified as follows: “I stepped on the step and raised my foot to go on the car as I was struck by the plank projecting out, and thrown to the ground; before I was in I was struck and knocked to the ground by a plank lying in crotches; * * "x" It struck me on the right side (indicating), turned me around and threw me to the ground.”

The occurrence at the instant of the accident is thus described by one of defendant’s witnesses who was a passenger on the car-: “I saw Berry (the plaintiff) when he first stepped on the steps of the car; he was partially standing on the step and one foot on the ground, and the car was moving; he also had his hand on the railing, which runs perpendicular with the end of the car. He might possibly have raised himself upon the step or put both feet upon the step. He stayed in that position a very small fraction of a minute, a very few

The plaintiff testified that at the time of the accident he did not observe this barrier, although standing within about four feet, more or less, of the same, but admits that he had observed it on a previous occasion. He thus swears: “ I saw it standing there. I remember they were paving Leah street, and it was torn up, and this barrier was placed there so horses could not pass. They were digging a trench there at the intersection of Leah street, and that is what the barrier was there for.” It was proved 'that there was an electric light at the corner of Leah street and Seymour avenue, and the plaintiff testified: “ So far as I remember it was light there so I could see. I do not remember whether the night was fair or not.” These extracts from the record, taken from that portion of the evidence most favorable to the plaintiff, disclose a situation that establishes the contributory negligence of the plaintiff as matter of law.-

The theory "of the plaintiff is that while he was attempting to enter, the signal was given by the conductor to go ahead, and tliat the sudden starting of the car threw him out against the barrier, thus causing his injuries. When we consider that the plaintiff was standing within possibly two or three or four feet of the barrier, more or less, according to his own testimony, at the time he sought to board this moving car, and that he wras swept from the step by contact with the end of the plank, extending to within two or three or four inches of the side of the car, within “ two seconds or so,” it is quite inconceivable that in this brief interval the speed of the car could have been so appreciably accelerated as to be regarded the proximate cause of the accident. It was a highly negligent act on the part of the plaintiff, standing so near the barrier, to attempt entering 'the car, even assuming that a bell was given the motorman to go ahead. It seems absolutely clear that the accident was due to this error of judgment on the part of the plaintiff.

This case is a very clear authority in favor of the defendant; there were “unfavorable conditions” which should have admonished the plaintiff that it was an act of recklessness to attempt entering the car under the circumstances.

In Moylan v. Second Avenue R. R. Co. ( 128 N. Y. 583 ) the plaintiff was the sole witness to prove how the injuries were caused, and upon that point his evidence upon direct

Judge Earl, writing for the court, said : “ Upon these facts we think the plaintiff should have been nonsuited. It is impossible for us to perceive wherein the defendant was guilty of negligence, or if it was guilty, wherein it was more guilty than the plaintiff. It was not careless for the plaintiff to attempt to enter the car while it was slowly moving. Thousands of young men get on and off street cars daily and are permitted to do so in perfect safety. Ho negligence can, therefore, be imputed to the defendant merely because it did not stop the car for the plaintiff. But for the truck in the street he would have entered the car in safety, and would have been uninjured. The sole question, therefore, is whether the defendant ought to have guarded the plaintiff against injury from the truck in the street near its track. It was not bound to know that the truck was temporarily there so close to its track that there was danger that a person attempting to get into one of its cars might be injured by collision therewith. There was no evidence that the driver or conductor of the car saw the truck or perceived the danger, and it does not even

The case at bar is much stronger against the plaintiff than the one last cited. The plaintiff was twenty-nine years of age and presumably in good health, and in possession of all his faculties. He was aware of the existence of this barrier prior to the date of the accident, and stood practically alongside of it, in a well-lighted place, when he attempted to board the moving car.

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

Cullen, Oh. J., Gray, O’Brien, Haight, Vann and Werner, JJ., concur.

Judgment and order reversed, etc.