Stastney v. Second Avenue Railroad — 46 N.Y. St. Rep. 537

Majority

p. 537

Peter Stastney, Resp’t, v. The Second Avenue Railroad Co., App’lt.

(New York Superior Court, General Term,

Filed May 2, 1892.)

Headnote

Negligence—Street railroads—Contributory.

Plain'iff. who was a passenger in one of defendant’s cars, was asked ky

p. 538

the driver to assist in getting the car off the track to pass an obstruction. While engaged in that work, another car jumped the track for the same purpose, but on the wrong side, and plaintiS was caught between them and injured. Held, that plaintiS was lawfully upon the street, and could not be said, as matter c.f law, to have contributed to liis injury, and that the questions of fact were properly submitted to the jury.

Appeal from "judgment entered on verdict in favor of the-plaintiff, and from an order denying a motion for a new trial.

Merrill & Rogers, for app’lt; L. J. Grant, for resp’t.

Plaintiff was on February 27th, 1890, a passenger in one of the defendant’s cars going up town. When the car reached a point on First avenue between Sixty-Fifth and Sixty-Sixth streets, it found the track blocked by a broken down furniture van or truck. The passengers were requested by the conductor to get out and assist in getting the car off the track, so-as to get around the truck, that the car might continue its journey. The passengers, among them the plaintiff, obeyed the request, and while thus assisting, a car coming down the avenue, finding itself blocked by the same obstacle, “jumped ” the track, but instead of “jumping” to the west, which would be the proper thing for it to do, it “jumped” to the east, and caught the plaintiff between the cars, doing him the injuries of which he complains. If the. down town car had “jumped ” the track to the west, as it should have done, the danger would have been avoided, but “ jumping” toward the east naturally brought it in-collision with the up town car, and in this manner the damage was done. The plaintiff was lawfully upon the street at the time, by the invitation of the defendant’s conductor in charge of the uptown car. He had no warning of the danger, and cannot be said to have contributed to the collision, or to the bringing the injury upon himself.

The learned trial judge submitted the question of negligence to-the jury, and they found- for the plaintiff on evidence which sustains their verdict, which was moderate in amount. The defendant’s counsel moved to dismiss the complaint on the ground that the testimony and circhmstances detailed neither proved negligence on the part of the defendant, nor freedom from fault on the part of the plaintiff. The motion was properly denied, as the-evidence and the inferences to be drawn from it were matters-about which minds might differ, and it was for the jury to determine the question of fact involved.

No error was committed during the trial, and the judgment and order denying the motion for a new trial must be affirmed, with costs.

Freedman, J., concurs.