Freeman v. Consolidated Traction Co. — 53 N.Y.S. 410

Majority

p. 410

FREEMAN v. CONSOLIDATED TRACTION CO.

(City Court of New York,

General Term.

August 4, 1898.)

Headnote

Nonsuit—Question por Jury.

If, in an action by a passenger to recover damages from a surface railway company for personal injuries sustained by the plaintiff through the alleged negligence of the defendant in suddenly starting a car while the plaintiff was leaving it, the plaintiff testifies positively that, when he was stepping from the car, it had, for that purpose, been brought to a full stop, and was then suddenly started, a motion for a nonsuit, made at the close of the plaintiff’s case, is properly denied.

Appeal from trial term.

Action by Max Freeman against the Consolidated Traction Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Affirmed.

Argued before CONLAN and SCHUCHMAY, JJ.

Jarvis N. Atkinson, for appellant.

Julius H. Kahn, for respondent.

This is an appeal from a judgment entered upon a verdict at the trial term of this court,- and from an order denying a motion for a new trial. The action was brought to recover for personal injuries alleged to have been sustained by the plaintiff while a passenger on one of the cars of the defendant, and to have been caused solely by the defendant’s negligence. The theory of the plaintiff is that he signaled the conductor of the car to alight at a certain point on the route, and that, in consequence thereof, the car came to a full stop; and when he attempted to get off, and'with one foot upon the car and the other upon the ground, and having hold of the handle upon the car with his right hand, the car was suddenly started, and afterwards he was thrown to the ground, and thus suffered the injuries for which recovery is sought to be had. There is some dispute as to which side of the car the plaintiff got off. He himself testified that it was the left side, and at least one of the defendant’s witnesses agrees with him in this particular. The evidence of the plaintiff is positive on the point that the car had fully stopped when he attempted to get off, and for this reason we think the motion for a nonsuit was properly denied, at the close of the plaintiff’s case. Upon the question whether the car was fully stopped or not, there is a sharp conflict of

p. 411

evidence; but the trial judge submitted the whole case, on all of the evidence, to the jury in a well-considered charge, to which no exception was taken; and we should only be usurping the province of the jury if, upon the case as presented by the printed record before us, we were to disturb its finding. We are unwilling to say that a verdict of $600 under all the circumstances of the case was excessive, and are therefore of the opinion that the judgment and order appealed from must be affirmed, with costs.

Judgment affirmed, with costs.

SCHUCHMAN, J., concurs.