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Woods v. New York & Queens County Railway Co.

112 N.Y.S. 680 Court N.Y. App. Div. Decision date 1908-10-22 English

Delivered by MILLER, J.

Contents

Majority

p. 680
WOODS v. NEW YORK & Q. C. RY. CO.
(Supreme Court, Appellate Division, Second Department.
October 22, 1908.)

Headnote

Trial (§ 295*)—Instructions.
♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rép’r Indexes
Where, in an action for injuries to a passenger while boarding a car, plaintiff testified that after she had put one foot on the running board and had taken hold of the stanchion the car started and threw her to the ground, and the company showed that plaintiff was in the car before it started, and that she attempted to jump off to rejoin companions who had not succeeded in getting on board, an instruction that if the car started while plaintiff was boarding- it, and threw her off, the verdict should be for her, was erroneous, as withdrawing from the jury the questions of the company’s negligence and plaintiff’s freedom from contributory negligence, though the court charged as an abstract proposition that the company was negligent if it did not allow plaintiff a reasonable time to board the car, and that plaintiff was guilty of contributory negligence if she attempted to get off the car while in motion.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]
Appeal from Trial Term, Kings County.
Action by Mary A. Woods, by Bridget Woods, her guardian ad litem, against the New York & Queens County Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.
Reversed.
p. 681
Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.
Vine H. Smith (Bayard H. Ames, on the brief), for appellant.
Henry M. Dater (George E. Elliott, on the brief), for respondent.

The plaintiff sues to recover damages for personal injuries which she asserts were caused by the negligence of the defendant’s servants in suddenly starting a car which she was attempting to board. Her version of the accident is that she had put one foot on the running board and had taken hold of the handle or stanchion at the side of the car, when it suddenly started and after going about 16 feet threw her to the ground. The defendant’s evidence tended to show" that the plaintiff was well within the car before it started, and that she attempted to jump off in order to rejoin some of her companions, who had not succeeded in boarding the car. The court charged the jury in substance that, if the car started while the plaintiff was in the act of boarding it and threw her off, the verdict must be for the plaintiff. There can be no doubt that, standing alone, such a charge presents reversible error. Kellegher v. Forty-Second St., etc., R. R. Co., 171 N. Y. 309 , 63 N. E. 1096 ; Johnston v. New York City Railway Co., 120 App. Div. 456 , 104 N. Y. Supp. 1039 ; Ward v. Metropolitan Street R. Co., 99 App. Div. 126 , 90 N. Y. Supp. 897 .

The respondent contends that the statement in question, as modified by the other parts of the charge, did not mislead the jury. The court did charge as an abstract proposition of law that the defendant was negligent if it did not allow the plaintiff a reasonable time to board the car, and that the plaintiff was guilty of contributory negligence if she attempted to get off the car while it was in motion. Those instructions, however, did not in any way modify the statement in effect that the plaintiff was free from contributory negligence and that the defendant’s servants were guilty of negligence as matter of law in case the car started while the plaintiff was in the act of boarding it; whereas it was for the jury to draw the inferences of the defendant’s negligence and the plaintiff’s freedom from contributory negligence from the facts which they deemed established by the evidence.

The judgment and order must be reversed.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.

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