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Cunningham v. Dry-Dock, E. B. & B. Railroad

64 N.Y.S. 350 Court N.Y. App. Term Decision date 1900-05-01 English

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p. 350
(31 Misc. Rep. 471.)
CUNNINGHAM v. DRY-DOCK, E. B. & B. R. CO.
(Supreme Court, Appellate Term.
May 1, 1900.)

Headnote

Carriers—Personal Injuries—Negligence—Starting Car—Contradictory Evidence—Charge—Appeal and Error.
Where the complaint alleged, and plaintiff’s evidence tended to show, personal injuries by reason of defendant’s negligence in suddenly starting its car which had been stopped to permit plaintiff to alight, and defendant’s evidence tended to show plaintiff’s injuries were received in attempting to get off the car while still in motion, it was error to refuse a charge that if plaintiff stepped off the car while the same was in motion the verdict should he for defendant.
Appeal from city court of Hew York, general term.
Action by Catherine Cunningham against the Dry-Dock, East Broadway & Battery Railroad Company to recover for personal injuries. From a judgment of the general term of the city court (60 H. Y. Supp. 990), affirming a judgment of the city court in favor of the plaintiff, defendant appeals.
Reversed.
Argued before TRUAX, P. J., and DUGRO and SCOTT, JJ.
Hoadley, Lauterbach Sc Johnson, for appellant.
A. Sc C. Steckler, for respondent.

The plaintiff alleged in her complaint, and on the trial offered evidence tending to show, that, as she was about to alight from one of the defendant’s cars, which had been stopped for the purpose of permitting the plaintiff to alight therefrom, said car was suddenly started again through the negligence of the defendant, and plaintiff was thrown to the ground, and received injuries. The testimony on the part of the defendant tended to show that the plaintiff received her injuries while attempting to get off the car while it was still in motion; that is to say, the defendant’s testimony contradicted that of the plaintiff. Under these circumstances, it was error

p. 351
for the court to refuse to charge that, if the plaintiff stepped off the car while the same was in motion, the verdict of the jury should be for the defendant. Patterson v. Railway Co., 26 App. Div. 336 , 49 N. Y. Supp. 796 ; Kuhlman v. Railroad Co., 30 Misc. Rep. 417 , 62 N. Y. Supp. 466 . Also see Savage v. Railroad Co., 29 App. Div. 556 , 51 N. Y. Supp. 1066 ; Kelly v. Same, 25 App. Div. 603 , 50 N. Y. Supp. 426 ; and Anderson v. Same, 36 App. Div. 309 , 55 N. Y. Supp. 290 .

The judgment and order appealed from are reversed, with costs, and a new trial ordered, with costs to appellant to abide the event.

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