Boehncke v. Brooklyn City Railroad — 51 N.Y. St. Rep. 434

Majority

p. 434

Frank E. Boehncke, App’lt, v. The Brooklyn City Railroad Co., Resp’t.

(City Court of Brooklyn, General Term,

Filed March 27, 1893.)

Headnote

Railroad — Negligence—Open steps.

Plaintiff, while entering one of defendant’s cars, was injured by his foot becoming caught in the opening at the back of the step. It appeared that for some years closed hacked steps were in common use in the city, and that some of defendant’s cars had them. Held, that whether or not defendant exercised ordinary care in having an open hacked step on this car was a question for the jury, and that it was error to take it from them by charging that the step was not defective.

Appeal from judgment in favor of defendant, entered upon verdict. .

Action for injuries sustained by plaintiff one of defendant’s cars, by reason of his foot slipping into the opening at the back of the step and being caught there when the car started. The court charged the_ jury in part as follows :

“ Gentlemen, I charge you on the evidence in this case (and as I said before you must take the law from me), that there was no defect in the step of this car. And I so charge you, because it appears that a similar step is in general use on horse railroads in this city, and no accident has ever happened by the use of said step or has ever been known to have happened.,

“ Nevertheless, in deciding the facts in this case, you have a

p. 435

right to consider and decide, whether this plaintiff was injured by reason of the fact that his foot was caught in the step of the car. You have a right to consider and decide that fact on the question of his negligence, whether he was careless or not, and on the question whether there was carelessness on the part of the conductor.”

Edgar Bergen and A. H. Dailey, for app’lt; Moore & Wallace, for resp’t.

There is testimony in this case, assuming the truth thereof, which shows that the driver of defendant’s car, in response to plaintiff's signal, brought his car almost to a stop; that plaintiff, in his attempt to get aboard, placed liis foot on the step,, when his foot slipped" into the . opening at the back of the step,, and was caught so tight therein that he could neither get on nor get his foot detached from the car, and was injured thereby; that the step was an open backed one, there being no riser between the tread of the step and the platform; that, for seven years in the leading cities of the country, and for five years in Brooklyn, closed backed steps were in common use on horse cars, and for a number of years were, and still are, in use on part of the cars of defendant ; that there was a double object for the use of such steps, viz.: to strengthen them and to prevent the feet of passengers from slipping through the space between the tread of the step and the platform. Whether or not the defendant exercised ordinary care in "having an open backed step on this car, under such circumstances, was, in our opinion, a question for the jury. The fact that the other kind of step was in common use and for the purpose of preventing just such accidents, would justify a finding of the jury that defendant was negligent in respect to this step, and we think it was error for the court to take the question from them. Hegeman v. The West. R. R. Co., 13 N. Y., 9 ; Smith v. N. Y. & H. R. R. Co., 19 id., 127 ; Boyce v. Manhattan R. Co., 118 id., 314; 28 St. Rep., 692 .

Judgment .and order must be reversed, with costs to appellant to abide the event, and new trial ordered.

Osborne, J., concurs.