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Waddy v. Brooklyn Heights R.

140 N.Y.S. 824 Court N.Y. App. Div. Decision date 1913-03-14 English

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p. 824
WADDY v. BROOKLYN HEIGHTS R. CO.
(Supreme Court, Appellate Division, Second Department.
March 14, 1913.)

Headnote

1. C Ait biers (§ 331[1] )—Street Railroads—Injury to Passenger—Contributory Negligence.
A passenger, thrown from the platform of a street car while going around a loop, who knew it would not stop till it had reached its stopping place, though the conductor had called, “All off,” and who from his experience should have known of its liability to change its speed, with danger to the equilibrium of standing passengers, is not shown to have been free from contributory negligence; it not appearing he took precau-. tion to maintain his position.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1371; 1374-1382; Dee. Dig. § 331.*]
2. Carriers (§ 295*)—Street Railroads—Injury to Passenger—Negligence.
Though a passenger was thrown from the platform of a street car, where he was riding, while it was, to his knowledge, going around a loop, it not appearing it was caused by any violent starting up of the car, and he being experienced in riding at such places, negligence of the carrier is not proved.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1191-1197, 1199, 1213, 1215, 1220; Dec. Dig. § 295.*]
Appeal from Trial Term, Kings County.
Action by Samuel J. Waddy against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial granted.
Argued before JENKS, P. J., and HIRSCHBERG, THOMAS, CARR, and RICH, JJ.
D. A. Marsh, of Brooklyn, for appellant.
Sterling Pierson, of Brooklyn, for respondent.

[1, 2] The plaintiff states his belief that there was a car ahead of the one in which he was riding when he went on the front platform. The evidence is that such was not the case. As a person experienced by long use of cars entering upon the loop and stopping, he knew that the car was passing around the loop to reach its stopping place, but that it had not come to such a point; and he also knew that the conductor’s call, “All off,” meant that he should alight when the car stopped. Experience also should have taught him that a car passing around such a loop often decreases and accelerates its speed with resultant disturbance to the equilibrium of standing passengers, and he should have taken some precaution to maintain himself on the platform. There is no evidence whatever that he did use such care, and, although he was.thrown off, it does not appear that theie was any violent starting up of the car that produced it. Hence the negligence of the defendant, is not proven; nor is the plaintiff shown to have been free from contributory negligence. Ayers v. Rochester Ry. Co., 156 N. Y. 104 ; 50.N. E. 960; Dwyer v. Auburn & Syracuse Elec

p. 825
tric R. R. Co., 131 App. Div. 477 , 115 N. Y. Supp. 364 ; Black v. Third Avenue R. Co., 2 App. Div. 387 , 37 N. Y. Supp. 830 .

Judgment and order should be reversed and new trial granted, costs to abide the event.

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