Ganley v. Brooklyn City Railroad — 7 N.Y.S. 854

Majority

p. 854

Ganley v. Brooklyn City R. Co.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

Horse and Street Railroads—Neghligence—Evidence.

In an action against a street-car company for personal injuries, where plaintiff testifies that after the car had slackened speed, and while he was'waiting for it to-stop, it made a sudden start forward, and threw him off, thus causing the injuries, and defendant’s witnesses are not entirely harmonious as to the circumstances, though they all testify that plaintiff got off while the car was in motion, a verdict for plaintiff will not be disturbed on appeal.

Appeal from circuit court, Kings county.

Action by John Ganley against the Brooklyn City Railroad Company, for personal injuries sustained by plaintiff while a passenger on defendant’s streetcar. Verdict and judgment for plaintiff, and defendant appeals.

Argued before Barnard, P. J., and Pratt, J.

Morris & Whitehouse, for appellant. P. J. Moissen, for respondent.

The evidence is more than'usually conflicting. The plaintiff testifies that he told the defendant’s conductor to let him out of the car at Rockaway avenue. The conductor passed the lower crossing, and the car was slackening its speed, but had not stopped. The plai ntiff got to the edge of the platform, and had his foot raised so as to step down when it was safe to do so, when the car suddenly started ahead, and threw the plaintiff, who was a feeble old man, into the street. The plaintiff is the only witness called in his own behalf. The defendant produced the conductor and driver of the car, four passengers, and a few who stood on the sidewalk at the time of the accident, who all testify that the plaintiff got off while the car was in motion, and after he was told to wait until the car stopped. There are only two test points of difference, as all admit the plaintiff either got off or was thrown off before the car stopped. The plaintiff says he had no notice to wait until the car stopped, but he was waiting until the car fully stopped, when he was thrown off. The question of fact is therefore reduced to one,—did the car suddenly start just before it came to a full stop? for the whole action rests on this. The plaintiff testifies positively to the sudden start forward, and that it threw him off. The car did not in fact stop till it reached the upper crossing, or a few feet above the upper crossing, and the witnesses say that the plaintiff jumped off between the tracks. The order to the plaintiff to wait for a full stop is of no weight if the car suddenly started before it did stop, causing the accident. The witnesses for the defense are not entirely harmonious as to the facts surrounding the fall, and the plaintiff’s narrative best agrees with the admitted facts in the case. The plaintiff would not voluntarily jump off between the tracks, and while the car was slackening its speed, so as to stop in a few feet of the crossing. The jury have found in his favor, and an appellate court should not, under the case as related, interfere with ttie verdict. The judgment should therefore be affirmed, with costs. All concur.