Colwell v. Manhattan Railway Co.

It seems to me there is no difficulty is sustaining the plaintiff’s right to recover in this action. The facts to which she testified and the inferences which may legitimately be •drawn from them, make out a case of negligence on the part of the defendant. The plaintiff was a passenger upon one of the defendant’s elevated railway trains on the west side of the city of ¡New York. She entered the cars at the Twenty-third street station, intending to go to the station at Fifty-ninth street and ¡Ninth avenue. As the train came into the latter station, the trainman who had charge of the gates got up, opened the door of the car and held it open.

The plaintiff rose to pass out and reached the sill of the door just as the car stopped. “ It jarred me,” she says, “ and he let go of the door, which slammed upon my fingers instantly, smashing the three first fingers.” When the door caught her fingers the trainman had just passed behind the plaintiff and was at the time crossing in front of her to open the door of the other car. She says that the jarring of the door caused her to grasp hold of the side of the door frame to save herself.

This testimony of the plaintiff was not in any manner controverted. The defendant introduced no evidence whatever upon' the tidal, but went to the jury ujDon the proof put in by the plaintiff, contending-that it failed to establish any negligence on the part of the trainman in the management of tire car door, and that it did affirmatively establish contributory negligence on the part of the plaintiff in getting up and going to the door before the train stopped and before the guard had called out the name of the station or invited passengers in any manner to leave the train. The plaintiff recovered "a verdict of $500 damages.

There was sufficient evidence of negligence to take the case to the jury. As the train ran into the station, the trainman opened the door and held it open and the plaintiff got up to pass out. The trainman had been sitting alznost opposite the plaintiff, and the circumstances were such that he must have seen her, and must have been aware that it was her intention and desire to leave the car at that particular station, through the door which he had just opened. If the mechanical appliances of the door were such that when he let go it was liable suddenly to slam shut by reason of the ordinary jarring of the train upon coming to a •stop, then it was his duty to retain his grasp upon it until the plaintiff had safely passed out. Either a door should have been provided which under ordinary circumstances would remain stationary after having been opened by the trainman to permit the egress of passengers, or the trainman should have exercised due

Ñor can it be held, as matter of law, that the plaintiff was guilty of contributory negligence. It is not negligent for a passenger in an elevated railway car to leave his seat and go toward a door which at the time is held open by one of the trainmen as the train approaches the station. There would be serious complaints, indeed, on the part of the elevated railway companies, if it were the general practice of passengers to wait to leave their seats until the train came to a full stop. The unnecessary delay would be very detrimental to the business of these railroads. In the brief for the appellant, it is said that the guard had not given "the plaintiff any invitation to leave the train, and furthermore, "that when she left her seat and went to the door it was open, not being caught back, but swinging on its hinges, so that the danger •that when the car stopped the door would swing to was perfectly -obvious. But the plaintiff’s testimony is not that the door was swinging on its hinges when she got up to pass out,-but that it had been opened by the trainman, who held it open. This act was certainly an implied invitation to leave the train, and must have been so understood by the passengers who desired to get out at the station which it was then approaching. As Miller, J., said in Nichols v. Sixth Ave. R. R. Co., 38 N. Y., 131 : “I am not aware of any rule which demands that a passenger on a railroad ■car in a city shall wait and remain in his seat after indications have been made manifest that the car is about to stop.” See, .also, Wylde v. Northern R. R. Co., 53 N. Y., 156 . Upon the proof in the case, no error was committed in charging the jury that the plaintiff’s act in getting up before the train stopped or before the name of the station was called was not contributory negligence on her part.

Another question remains to be considered. In order to prove ■the actual pecuniary loss which she had incurred by reason of the injury, the plaintiff testified that she employed a nurse, who remained with her for six weeks and to whom she paid $100. Ho other evidence whatever was introduced as to the value of the services of a nurse. The trial judge in his charge instructed the jury that in assessing the plaintiff’s damages they were to consider the expense which she had incurred for medical services and in the payment of the nurse, and told them that the nurse’s bill was proven at $100.

The counsel for the defendant asked the court to charge that the plaintiff could not recover for the nurse’s bill of $100, because there was no proof as to what the services were reasonably worth. The court declined to charge as requested, stating as a ground for the refusal that it had been proved that the amount was paid for

In the case at bar, however, there is not the sanie absolute lack of evidence as to value that there was in those cases. In regard to property, the ruléis well established that the price paid therefor is some evidence of value. Hoffman v. Conner, 76 N. Y., 121 . Similarly, I think, the price actually paid for personal services, such as those of this nurse, may be considered as some evidence of the value of the .work performed, and constitutes competent, proof sufficient to warrant the jury in considering the item in the assessment of damages.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concur.