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Garber v. Joline

119 N.Y.S. 1070 Court N.Y. App. Term Decision date 1909-12-22 English

Delivered by GIEGERICH, J.

Contents

Majority

p. 1070
GARBER v. JOLINE et al.
(Supreme Court, Appellate Term.
December 22, 1909.)

Headnote

1. Carriers (§ 318*)—Passengers—Injuries—Actions—Sufficiency of Evidence-Negligence.
In an action by a street car passenger for injuries by collision of the car with a wagon, evidence held to justify a finding of negligence by the motorman in permitting the front platform to be so overcrowded that he could not operate the brakes or control the car.
• [Ed. Note.—For other cases, see-Carriers, Cent. Dig. § 1312; Dec. Dig. § 318.*]
2. Carriers (§ 347*)—Passengers—Jury Question—Contributory Negligence-Riding on Platform.
While a "street car passenger while riding on the front platform assumed the ordinary risks of riding in that position, he was not.negligent as a matter of law in not foreseeing that the motorman might permit the platform to become overcrowded, so that he could not control the car, causing a collision with a vehicle.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1359; Dec. Dig. § 347.*]
•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Harris Garber against Adrian H. Joline and another, as ' receivers of the Metropolitan Street Railway Company. From an order denying a motion to set aside a verdict for plaintiff and for a new trial, defendants appeal.
Affirmed.
Argued before GIEGERICH, GOFF, and LEHMAN, JJ.
Masten & Nichols (Anthony J. Ernest, of counsel), for appellants.
Max Schlivek, for respondent.

The defendants rested at the close of the plaintiff’s case, and, their motion for a nonsuit being denied, the case was left to the jury, which found for the plaintiff. From the order denying their motion to set the verdict aside and for a new trial, they take this appeal.

It appeared from the testimony of the plaintiff and his witnesses that he boarded a street car of a line operated by the defendants, and, there being no room in the car, he stood on the front platform. A number of people stood on the platform with him. After traveling about two blocks, the car collided with a coal wagon which was standing against the curb. The car was going very fast. When a collision appeared inevitable, some of the passengers called to the motorman to stop the car, and he replied that he could not stop because of the crowd pressing against him. The plaintiff’s body came into collision with the coal wagon, and he was thrown from the car and injured.

It is clear enough that the verdict was justified by the evidence. If the jury believed that the motorman permitted the platform of the car to be so overcrowded that he could not work his brakes or keep the car under control, they were justified in finding the defendant guilty of negligence; and it was not negligence on the part of the plaintiff,

p. 1071
as a. matter of law, to ride on the platform of the car. He doubtless assumed the natural and ordinary risks involved in riding in that position; but he was not required, as a matter of law at any rate, to foresee that the motorman might permit his car, through overcrowding of the platform or otherwise, to get beyond his control while traveling at a high rate of speed. Kramer v. Brooklyn Heights R. R. Co., 190 N. Y. 310 , 83 N. E. 35 . That was by no means a risk incident to the position.

Order affirmed, with costs.

GOFF, J., concurs. LEHMAN, J., concurs in result.

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