Solomon v. Manhattan Railway Co.

It is undisputed that the train was in motion at the time the plaintiff’s intestate attempted to enter it. It had been brought to a stop, according to the usual custom, on reaching the Chatham square station for the purpose of • discharging and receiving passengers, and had started again before the deceased and the two men in front of him, hurrying from the Third avenue train across the bridge and down the steps to the station platform of the Second avenue road, had reached the rear of the first car. It is also undisputed that the conductor, who was standing on the platform between the first and second cars, had given the signal to start the train and had closed, or attempted to close, the gate before the first of the three men reached the car. The train at this time, as we have said, had started and was slowly moving, but with a constantly accelerated speed. The two men in advance of the intestate succeeded in safely boarding the train. The intestate was a few feet behind them. He attempted to get on the platform of the car after the others. The evidence tends to show that he took hold of the stanchions of the car with both hands, and placed one foot upon the car platform, and was in the act of passing on to the car when the conductor closed the gate against the deceased, who, clinging to the car, or possibly being caught in some way by the gate, was carried along a few feet, until his body came in contact with a water pipe extending horizontally at the end of the station platform, and received the injuries of which he subsequently died.

There is a conflict of evidence as to whether the gate had been fully closed before the two men in front of the intestate reached the car. The conductor testified that it was closed at that time and was pushed open by them. Witnesses for the plaintiff testified that. the conductor was closing the gate as the two men approached the car and opened it for them to enter, and then closed it as the intestate was attempting to get on. There is also some discrepancy in the evidence as to the distance from the car platform to the water pipe at the end of the station platform, when ■ the intestate reached the car. One of the plaintiff’s witnesses, who saw the whole transaction, testified that the distance was four or five feet, and other witnesses testified that it was ten feet. Wilson, a witness

In view of the undisputed fact that the car was moving when the deceased attempted to enter it, it is evident that the obstruction against which the deceased was carried was perilously near, and that a collision was inevitable if the deceased should fail to get on the car and should be carried along a few feet in the position in which he was when the gate was .closed. The station platform was lighted,'and “everything was clear.” The deceased had been accustomed to take the train in the evening at this station for more than a year. His son, who usually accompanied his father, testified that “the train stops very sharp and goes off very quick.” The trains ran every five minutes. There can be no doubt that the deceased was familiar with the surroundings and was acquainted with the manner of operating the trains. We are of opinion that the nonsuit was properly directed. It must be assumed that the deceased, when he attempted to enter the car, knew that it was in motion. We cannot know what'was passing in his mind, or of what existing facts he was actually cognizant, except by inference. But what others saw and knew in respect to matters equally open to his observation, must be presumed to have been seen and known by him; especially is this presumption a reasonable one in respect to matters which common prudence required him to know and observe before he attempted to enter the car. Knowing, then, as must be inferred, that the train was in motion, he took the risk of the attempt, to board it. The movement of the train was itself notice to him that the time for receiving passengers had passed. He undoubtedly thought he could board the train in safety, and except for the act of the conductor in closing the gate, the attempt would probably have been successful. It does not appear that the deceased knew of the attempt of the conductor to close the gate before the two men who preceded him entered the car. But he was in a position to have seen it, and the act was observed by the other witnesses.

We are of the opinion that the attempt of the deceased to enter the train, under the circumstances disclosed, was

In Burrows v. The Erie Railway Co. ( 63 N. Y., 556 ), the court reversed a judgment recovered for an injur)7- to a passenger in alighting at his station from a moving car, and in Morrison v. The Erie Railway Co. ( 56 N. Y., 302 ), the court reversed a verdict for the plaintiff under very similar circumstances. It is said by Rapallo, J., in Burrows v. The Erie Co., that “the cases in which a recovery has been allowed, notwithstanding that the passengers' undertook to leave the car while in motion, are exceptional and depend upon peculiar circumstances. In short, as we now understand the rule established by the decisions, it is presumptively a negligent act for a passenger to attempt to alight fa’om a moving train, and it is not sufficient to rebut the presumption that the trainmen acquiesced in the action of the passenger or that the company violated its duty or contract in not stopping the train, or that to remain on the train would subject the passenger to trouble or inconvenience, but that to excuse such an act and free the plaintiff from the charge of contributoiy negligence, there must be a coercion of circumstances which did not leave the passenger in the free and untrameled possession of his faculties and judgment.”

Negligence, no doubt, is usually a question of fact, of which tilae jury must • inquire, but the inference of negligence in a given case may be so clear and convincing that the judge may direct a verdict. The conclusion that it is

In the Phillips Case ( 49 N. Y., 117 ) the plaintiff was thrown, against a platform in attempting to board a train while in motion, and a nonsuit was sustained in this court.

In the present case the intestate was familiar wdth the situation. He must have known that, according to the rules, the time for receiving passengers had passed, and that the greatest celerity and promptness were required on the part of those entrusted with the management of trains. It is said that the opening of the gate by the conductor was an invitation for him to enter, and that if the conductor had not closed the gate upon him he would have boarded the train in safety. It is true that the opening of the gate to admit the two men in front of the deceased, and their safe entrance, may have given the intestate confidence that he could enter also. But the act of the conductor, as the sequel shows, was not intended as an invitation to' the intestate, and the conductor’s misjudgment or negligence •was one of the hazards which the intestate ran. It did not relieve him from the imputation of negligence, because he did not foresee the obstruction which would be interposed, or that without the negligence of the conductor the accident would not have happened. One of the very dangers of the situation arose from the fact that all the contingencies upon which the success of the effort to enter the car depended could not be anticipated. If men will take such hazards they must bear the consequences of their own rashness, and it is no just reason for visiting the consequences upon another that his negligence co-operated in producing the result.

We think the judgment should be affirmed.

Ruger, Ch. J., Earl and Finch, JJ., concur; Miller and Daneorth, JJ., dissent; Rapallo, J., taking no part.