Lang v. Interborough Rapid Transit Co.

plaintiff had failed to prove absence of contributory negligence on behalf of the daughter or negligence on behalf of defendant.

[1, 2] There was no contention that plaintiff was guilty of contributory negligence in assisting her daughter in peril. Contributory negligence by the daughter, even if proven, would not defeat plaintiff’s claim. Such negligence is not imputable to plaintiff, nor would it constitute a defense to this action, although it would defeat an action by the daughter herself. Sann v. Johns, 16 App. Div. 252 , 44 N. Y. Supp. 641 . It was not incumbent, therefore, on plaintiff to prove absence of contributory negligence by the daughter. If defendant contends that the daughter’s negligence was the sole cause of her (the daughter’s) peril, that is a denial of negligence by defendant, and a matter of defense under the general issue.

[3] The only question in this case therefore is: Was there sufficient evidence to go to the jury of negligence on defendant’s part in putting the daughter in peril? In Bessenger v. Metropolitan Street Railway Company, 79 App. Div. 33 , 79 N. Y. Supp. 1017 , the car had come to a standstill at a street intersection. Plaintiff was getting off, and while so doing the car started. It was held dismissal was error. ‘‘The jury might very properly have found that it was negligence on the part of the motorman to again start his car without looking around to discover whether there was any one in the act of alighting.” This case was approved in Foden v. Brooklyn Heights R. R. Co., 136 App. Div. 765 , 121 N. Y. Supp. 420 ; where the court said:

“We are committed to the rule, declared in Dean v. Third Ave. R. R. Co., 34 App. Div. 220 [ 54 N. Y. Supp. 490 ], applied in' Sexton v. Metropolitan Street Railway Company. 40 App. Div. 26 , 57 N. Y. Supp. 577 , and reaffirmed in Bessenger v. Metropolitan Street R. Co., 79 App. Div. 32 [ 79 N. Y. Supp. 1017 ], that ‘where a street surface car has come to a full standstill, reasonable care in its operation demands that it should not be started without some effort on the part of the conductor or motorman to determine whether this may be done'1 with safety to passengers or intending passengers, and that the question of negligence is one for the jury.’ ”

Applying this principle to the case at bar, the car had come to a standstill at a regular station. While the daughter was getting on, the door was closed, catching her, and while so caught, and when the door, by reason of her being so caught, could not have been completely closed, the train was started, so Miss Wagner testified, and the jury would have been entitled to believe het. Even if it be assumed that the daughter was negligent in trying to board the car, or that her getting on and the closing of the door were simultaneous acts, still the starting of the train while she was so caught, arid before completely, closing the door, made out a case for the jury.The jury might very properly have found it was negligence on the part of the defendant to start the train without looking, or before the door was completely \ closed, especially where it must haYe been apparent there "was some obstruction to a complete closing. Y The car having stopped at a sta-I tion, reasonable care in operation required that it should not be started j without some effort on the part of those in charge to see if it could j be done with safety; and, that being so, where an accident is caused I, by the starting, the question of negligence is for the jury under the j

above authorities. Although the foregoing cases are street car cases, no reason appears why the same rule should not apply to the underground, and in fact it has its regular stations for stopping, and the usual andi proper course is to close the doors by the lever before the signal is given to start. It would seem especially incumbent to make an effort to see if it could be done with safety. Where defendant knew plaintiff was getting on, the starting of the car with a sudden jerk while plaintiff was in the act of doing so was held to make out a case for the jury as to defendant’s negligence. Morrison v. B. & S. A. R. Co., 130 N. Y. 166 , 29 N. E. 105 ; Hirschberg v. Brooklyn & Queens Co., 134 App. Div. 629 , 119 N, Y. Supp. 492 .

[4]/Here the stop was at a regular station for the purpose of taking on passengers. < The defendant’s agent is therefore chargeable with notice that passengers are getting on (Laverty v. Interurban Street R. R. Co., 49 Misc. Rep. 510 , 98 N. Y. Supp. 846 ), and is bound to look and see if he can proceed to shut the door or start the train with safety. If he had looked, he woulcrliave seen the trouble; if he could not see, the train should not have been started. The act of closing the door, as well as starting the train, made out a prima facie case of negligence for the jury.,/

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.

LEHMAN, J., concurs.

I think the trial justice was right in dismissing the complaint for failure of proof. It may well be that the daughter was caught because she attempted to enter after the door had started to close, and that the defendant was not guilty of any negligence up to that time, and consequently not responsible for any injuries received by the plaintiff up to that time. Even though the defendant may be responsible for such injuries, if any, as the plaintiff may have received after the defendant’s negligent act in starting the car, it was for the plaintiff to show when her injuries were received. I can find nothing in the record to show that such injuries were not all received before the car started, and at the first impact of the plaintiff’s body against the door, and before the time when any negligence was proven against the defendant.

I believe the judgment should be affirmed, with costs.