Cohen v. Brooklyn Heights R. — 118 N.Y.S. 803

Majority

p. 803

COHEN v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department.

October 8, 1909.)

Headnote

1. Carriers (§ 315*)—Injuries to Passengers—Issues, Proof, and Variance.

In an action for injuries to a street car passenger, while alighting from the car, there is no variance justifying a nonsuit between the complaint alleging that the passenger notified the conductor to stop at a crossing and the evidence that the passenger’s little son, who was with her on the car, notified the conductor to stop.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1281; Dec. Dig. § 315.*]

2. Carriers (§ 318*)—Injuries to Passengers—Evidence.

The testimony, in an action for injuries to a street car passenger while alighting from a car, that the conductor was told to stop at a crossing,

p. 804

that he did so, that the passenger, accompanied by her little son, went to get off, and that, as she was in the act of stepping down from the running board, the car started with a jerk, and she fell, sufficiently showed that the jerk qf the car caused the fall to sustain a recovery.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1314; Dec. Dig. § 318.*]

Appeal from Municipal Court of City of New York.

Action by Pauline Cohen against the Brooklyn Heights Railroad Company. From a judgment of the Municipal Court dismissing the complaint, plaintiff appeals.

Reversed.

Argued before JENKS, GAYNOR, BURR, RICH, and MILLER, JJ.

Oswald N. Jacoby, for appellant.

Francis R. Stoddard, Jr., for respondent.

The plaintiff was on one of the defendant’s open cars with her little son. He told the conductor to stop at the crossing, and the conductor did so by the bell. They then went to get off, the mother leading. As she was in the act of stepping down from the running board the car started with a jerk and she fell to the street. This is their testimony. A motion for a non-suit was made on it on the ground that whereas the complaint alleges that the mother notified the conductor to stop at the crossing the evidence showed that the son did so, and granted, it being urged that the conductor might not have known she was getting off. The matter will not bear argument. A new point is now urged by the defendant, viz., that the plaintiff and her son did not testify in so many words that the jerk of the car forward threw her or made her fall, but only that she fell. This is too fine. Justice is not administered with such literalness. Everything was told in sequence, and it is fairly inferable that she fell from the movement of the car.

The judgment should be reversed.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. All concur.