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Kinkade v. Atlantic Avenue Railroad

29 N.Y.S. 747 Court Brooklyn City Ct. Decision date 1894-06-25 English

Delivered by CLEMENT, C. J.

Contents

Majority

p. 747
(9 Misc. Rep. 273.)
KINKADE v. ATLANTIC AVE. R. CO.
(City Court of Brooklyn, General Term.
June 25, 1894.)

Headnote

Street Oars—Injury to Passenger— Sudden Start.
It is negligence to suddenly and without warning start a street car while a passenger is on the step, and before he has had time to get his seat in the car.
Appeal from trial term.
Action by Moses D. Kinkade against the Atlantic Avenue Eailroad Company for personal injuries. There was a judgment in favor of plaintiff, and defendant appeals.
Affirmed.
Argued before CLEMEYT, C. J., and OSBOEYE, J.
Morris & Whitehouse, for appellant.
Ayres & Walker, for respondent.

The counsel for the appellant in this case seeks reversal on only two grounds—First, that there was no proof of negligence on the part of the employes of the defendant; and, second, on the ground that the verdict for $10,000 was excessive. We

p. 748
have carefully read the record in this case, and find no ground for-disturbing the result at the trial term. We will go further, and say that the appeal seems to us to be taken solely for delay. It was decided by this court in the case of Medler v. Railroad Co., 12 N. Y. Supp. 930 , affirmed in court of appeals without opinion 126 N. Y. 669 , 27 N. E. 854 ,’that it was negligence for the driver to suddenly start an open horse car when the passenger was on the step for the purpose of alighting therefrom. The converse of the rule would' seem equally true,—rthat it was a negligent' act to suddenly and without warning start when the passenger was on the step, and before he-had time to get his seat in the car. The defendant’s counsel, however, contend that plaintiff urns riding on the step for the reason that he could not find a seat. If so, the case is stronger against the company. If the plaintiff was forced to ride in a dangerous place. Then he was not guilty of contributory negligence in so doing, and the employes of the company were bound to exercise-greater care. Spooner v. Railroad Co., 54 N. Y. 230 ; Werle v. Railroad Co., 98 N. Y. 650 . The verdict was not excessive within the principles laid down by this court in the case of Vail v. Railroad Co., 6 Misc. Rep. 20 , 26 N. Y. Supp. 59 . Judgment and order denying new trial affirmed, with costs.

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