Ganz v. Metropolitan Street Railway Co. — 84 N.Y.S. 579

Majority

p. 579

GANZ v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term.

November 6, 1903.)

Headnote

1. Street Railways — Injury to Person Boarding Car — Contributory Negligence.

Plaintiff, in an action for injury received in attempting to board a street car, testified that the gate of the car was not fully opened for reception of passengers, that it was open a little bit, and that if he had seen the position it was in he never would- have put his hand there to get hurt. Held, that there was evidence for the jury that he did not use reasonable care in attempting to board the car, under the circumstances.

Appeal from City Court of New York.

Action by Joseph Ganz against the Metropolitan Street Railway Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Joseph I. Green, for appellant.

H. A. Robinson (F. Angelo Gaynor and Bayard H. Ames, of counsel), for respondent.

• This is an action to recover damages for personal injuries. . Upon the evidence it is at least doubtful whether the plaintiff was injured in the manner alleged in the complaint and as testified to by him. The testimony respecting this material issue was conflicting, and was properly submitted to the jury. The plaintiff testified that the gate of the car was not fully open for the reception of passengers, that it was opened “a little bit,” and that “if I had seen the position that gate was in I never would have put my hand there to get hurt.” This being so, it was for the jury to decide whether the plaintiff used reasonable care in attempting to board the car, under such circumstances. The plaintiff’s exceptions are without merit.

The judgment and order appealed from should be affirmed, with costs. All concur.