Gainard v. Rochester City & Brighton, Railroad

The plaintiff attempted to enter one of the defendant’s cars, as a passenger, and as she placed one

The car in question was drawn by one horse, and the driver, whose position was on the front platform, had the sole charge of the same. In the day time the car stopped at a street crossing, where all the defendant’s cars were accustomed to stop, for the purpose of receiving passengers, and the driver opened the door, in the rear end of the car, through which the passengers entered. The plaintiff frequently rode in the cars running on the defendant’s line, and she and the driver knew each other by sight. As the car stopped, the plaintiff was on the sidewalk nearly opposite. Her own evidence tended to prove, that she gave a signal to the driver, indicating that she desired to take the car, which he observed and understood, and she then stepped from the sidewalk towards the car, and that it did not move until she had reached it, and placed her right foot on the step, and with her right hand had taken hold of the car. This evidence was disputed by the driver, and also by the driver of another car, who was in the employ of the defendant.

It was for the jury to say which of these witnesses told the truth. Their conclusion is not without evidence to support the plaintiff’s side of the question in dispute. The contradicting witnesses were in the employ of the defendant at the time of the accident, and to one of them, the alleged negligent act is imputed. If the driver did recognize the signal given by the plaintiff, and saw that she was approaching the car for the purpose of taking passage therein, and he held the car for her to enter the same as a passenger, then the instant she placed her foot on the steps she was a passenger, and entitled to all the care and protection which the law bestows upon all persons riding in street cars. The signal amounted to an offer or request, on the part of the plaintiff, to ride in that car, and its recognition by the person in charge of the car, to an acceptance of the same. Shearman and Redfield on ¡Negligence, section 262.

In a case where it appeared that the plaintiff held up his finger to the driver of an omnibus, who stopped to take him up, and just-as the plaintiff was putting his foot on the step of the omnibus the driver drove on, and the plaintiff fell on his face to the ground and received injuries, it was

The carrier must use great care, not only in carrying his passengers but in all preliminary matters, such as their reception into the vehicle provided for their use. In this state, carriers by street cars are not required, as matter of law, to provide a conductor to take dharge of the car and assist the passengers on and off from the platform. The fact, however, that there was no person in charge of the car aside from the driver may be considered as a circumstance bearing on the question of the negligence of the defendant.

The carrier must allow a passenger a reasonable time to get on and off the car, and if, while doing so, the car- is started suddenly and so as to produce a jerking motion, it is in and of itself an act of carelessness. I think by applying to the case before us the well-settled rule, “that passenger carriers bind themselves to carry safely those whom they take into their coaches as far as human care and foresight will go, that is, to the utmost care and diligence of very cautious persons,” the charge of negligence on the part of the defendant was fully supported by the evidence. Maverick v. Eighth Ave. Railway Co., 36 N. Y., 381 .

For the purpose of defeating a recovery in this action the defendant contends that the plaintiff was guilty of contributory negligence, and for this reason the judgment should be reversed.

The plaintiff approached the car on the right hand side of the same, as it was faced to the east, that being the direction in which the car was moving. The only act on the part of the plaintiff which is claimed to be negligent is that as she placed her right foot on the step she, at the same time, with her right hand, took hold of the rail which passes around the sheet or guard on the rear part of the platform, instead of taking hold of the guard-rail, which is placed on the body of the car, and within reach as the passenger is stepping on the platform. The plaintiff admits that she attempted to support herself in the manner mentioned, and that while her right foot was on the step and her right hand on the rod in the rear part of the platform, the car started and she was thrown to the ground. Whether this manner of supporting herself while ascending to the platform was negligent or not, under the circumstances, I think, was a proper question for the jury. The law does not, and cannot, indicate the proper steps and movements for a passenger to observe while entering a street car.

In such matters it only lays down general rules, and the

The plaintiff had the right to assume that the car would not start until she had gained the platform at least, and having acted upon that assumption, as we may assume she did, negligence cannot be fairly imputed to her. Nichols v. Sixth Avenue R. Co., 38 N. Y., 133 .

The pnly risk to which the plaintiff was exposed in stepping on the car was the sudden starting of the same with a jerking motion. This she had no reason to apprehend, as she had notified the driver of her intention to take the car, and he assented and impliedly promised to wait until she gained the inside of the car. The rule on this subject as stated in Sherman & Redfield in their work on negligence is as follows: “A passenger ought not to be deemed guilty of contributory negligence when he takes only such risks as under the same circumstance a prudent man would take.” This proposition is supported by all the authorities. See Filer v. N, Y. C. R., 49 N. Y., 47 ; Keating v. R. R., 3 Lans., 469 ; affirmed in 49 N. Y., 673 ; Totten v. Phipps, 52 N. Y., 354 .

In the last case cited the rule is briefly stated as follows: “Everyone must exercise that care which a prudent person would exercise under the particular circumstances; and as a general rule the degree of care must be in proportion to the danger.”

To justify a non-suit on the ground of the plaintiff’s contributory negligence, such negligence must appear so clearly that no consideration of the evidence or the inferences from the facts would have warranted a contrary conclusion. Stackus v. N. Y. C. and H. R. R., 79 N. Y., 464 .

In Fordham v. Brighton R. R. Co. (Law Rep., 4 C. P., 619) the plaintiff, while getting into one of the defendant’s railway carriages, having a parcel in his right hand, placed his left hand on the back of the open door to aid him in mounting the step. Before he had completely entered the cari’iage, the guard without previous warning, forcibly closed the door and crushed the plaintiff’s hand between the door and the door-post. In an action for the injury

In another case (Coleman v. S. E. R. Co., 4 Hurlst. & C., 699), a boy twelve years of age had entered a railway carriage in the night time and was about to seat himself, when he placed his fingers on a part of the door. His father was behind him getting into the carriage, when a porter violently closed the door, which crushed the boy’s fingers and struck his father on the back. It was held in that case that there was evidence of negligence on the part of the porter, which was properly submitted to the jury, and that there was no contributory negligence on the part of the boy.

It cannot be doubted that in this case the law required that the question of the plaintiff’s contributory negligence be submitted to the jury. There is no rule of law making it negligence, per se, for a passenger to step aboard a standing street car when the platform is unoccupied, as in this case, without taking hold of the railing with his hand to guard against the sudden movement of the car, and particularly when the person in charge of the car has been notified that the passenger is in the act of entering the car. The street cars are intended for the use of all classes of people as they come and go about their daily affairs. Some have packages in one hand and some m both, and none have reason to suppose that the car will start with a sudden and. dangerous motion while they are passing in.

The plaintiff gave some evidence tending to show that on other days, the driver started his car suddenly and drove rapidly, and while on duty, used intoxicated drinks. Immediately after this evidence was given by the witness, the court on its own motion directed that all the evidence given on this point to which the defendant’s objection applied, be striken from the record. After this order, no reference, whatever, was made to this evidence, during the trial. We think the error, if the question objected to was incompetent, was cured as the evidence was not, in fact, responsive to the subject-matter of inquiry embraced in the question.

A medical witness was asked a question by the plaintiff, putin this form: “Suppose she, the plaintiff, was precipitated from the back part of a car, something like the model here in court, and her hand involuntarily clung to the rod there, to such an extent that she could not open it, and was contracted, what in your opinion, produced that clinging, or what might produce it? ”

The defendant’s counsel objected to this question as immaterial and incompetent and not matter for an expert.

We see no merit in the appellant’s fourth point, as the witness did not testify to any declaration made by the plaintiff to her physician, but he simply stated in reply, to an inquiry, that she made a statement to him on the occasion referred to.

A physician was called by the plaintiff and testified as the case states, as to the condition in which he found the plaintiff, when he visited her as his patientSeveral questions and the answers thereto, are set forth in the case, in haec verba among them, the following; “ Suppose it is upwards of two years since the injury, and it is still painful on using, what would you say as to the probable duration of that hereafter?” The defendant objected to the question, the same was overruled and an exception was taken, and the witness answer: “I should say it would continue.” He was then asked, “Is there a probability of its leading to still more serious results ? ” This was also objected to and the witness answered: “With those conditions, there is a probability.” In support of his exception, the appellant relies upon the case of Strohm v. N. Y., L. E. and W. R.Co., 96 N. Y., 305 . The rule of evidence affirmed and applied to the facts of that case, has no just application to the one now before us. In this state the rule is well established that in estimating the pecuniary loss in cases of this character, all the consequences of the injury, future as well as the past, are to be taken into consideration. Curtis v. R. and S. R. R. Co., 18 N. Y., 542 .

In a recent case decided in this court, Cook v. N. Y. C. and H. R. R. R. Co., and reported in 17 N. Y. St. R., 353 , the

The sixth and last point presented, by. the appellant’s brief, has been fully considered, and we fail to discover any error in allowing the witness, Cover, to state the observations he made on car No. 89, as the evidence tended to prove that that car was, in all material respects, of the same size and proportions as car No. 121, on which the accident happened.

As we have been unable to discover any errors in the record, the judgment and the order should be affirmed, with costs.

All concur; Dwight, J., not voting.