Hyperlawhypertext legal database Onderdonk v. New York & Sea Beach Railway Co. 26 N.Y.S. 310

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Onderdonk v. New York & Sea Beach Railway Co.

26 N.Y.S. 310 Court N.Y. Gen. Term Decision date 1893-12-01 English

Delivered by BARNARD, P. J.

Contents

Majority

p. 310
(74 Hun, 42.)
ONDERDONK v. NEW YORK & S. B. RY. Co.
(Supreme Court, General Term, Second Department.
December 1, 1893.)

Headnote

1. Carriers—Injury.to Passenger—Negligence.
Defendant’s car, on which plaintiff was a passenger, ran past the platform at her station, into a tunnel, where she could not alight on the side of the car that the platform was on. Just as she was about to alight on the opposite side, the car was started suddenly, and plaintiff was thrown to the ground. Held, that the jury was justified in finding defendant guilty of negligence.
2. Same—Contributory Negligence.
In such case the question as to whether or not plaintiff was guilty of contributory negligence was for the jury.
Appeal from special term, Kings county.
Action by Sophia M. Onderdonk against the New York & Sea Beach Railway Company for personal injuries caused by defendant’s negligence while plaintiff was a passenger on its train. From a judgment for plaintiff, and from an order denying its motion for a new trial, defendant appeals.
Affirmed.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Charles C. Protheroe, for appellant.
Wm. P. Pickett, for respondent.

The plaintiff, on the 30th of July, 1890, was a passenger on the defendant’s railroad. She was traveling from Coney island to Brooklyn city. Her station was Third avenue and Sixty-Fifth street. On account of her failure to hear the station called by the conductor, she was carried by her station, and went to the ferry terminus of the road. The conductor told her to get on a return train, which she did. She was directed to take the first car on the return train, which she also obeyed. When the cars got to her station, the engine and first car were carried so far into a tunnel that it was not possible to leave the cars in the usual way. The car was beyond the platform. There was not sufficient room to alight on the platform side of the station between the car and the side of the tunnel. There was no conductor near her. She attempted to get from the car on the left side of the track. As she put her hand to the guard of the car platform, and attempted to put her foot upon the ground, the car started, and threw her heavily upon the rough, gritty soil, ashes, and cinders which made the surface of the ground where she fell, and was seriously injured.

There is no difficulty in upholding the verdict of the jury that the accident was occasioned by the defendant’s negligence. The company was bound to provide a reasonably safe place at which the passengers could leave the car, and to wait long enough for a diligent passenger to be able to do so. The defendant failed in both respects. A safe place was provided, but the car ran by it, so that the plaintiff could not avail herself of it. In attempting to leave on the only side of the car which was available to her, the car started so as to throw her down before she got upon the ground. The case is fully supported by the court of appeal's in McDonald v.

p. 311
Railroad Co., 116 N. Y. 546 , 22 N. E. 1068 . The question of the negligence of the plaintiff which contributed to the accident was one for the jury. She was bound to use a prudent caution to escape danger, and the evidence fails to show that, under the situation in which she was placed, she failed in this duty. At all events, it was for the jury to say. McClain v. Railroad Co., 116 N. Y. 459 , 22 N. E. 1062 . The judgment and order denying new trial should be affirmed, with costs. All concur.

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