Bruno v. Brooklyn City Railroad — 55 N.Y. St. Rep. 215

Majority

p. 215

Francis Bruno, Resp’t, v. The Brooklyn City Railroad Co., App’lt.

(City Court of Brooklyn, General Term,

Filed October 23, 1893.)

Headnote

1. Railboad—Negligence—Riding on step op open cab.

To ride upon the step of an open street car, when the car is crowded, is not negligence as matter of law, but the question is one for the jury.

3. Same—Chabge.

An error, if it he such, in refusing a request to charge that it was the duty of the plaintiff, on getting upon the car, to use reasonable care to put himself into as safe a place as he could procure, is cured by a charge that if there was room on the front platform it was his duty to take his position there, where it appeared that all the seats were occupied and the rear platform crowded.

Appeal from judgment in favor of plaintiff, entered upon ver-dict, and from order denying motion for a new trial.

Morris & Whitehouse, for app’lt; J. Edward Swanstrom, for resp’t.

This action was brought to recover damages alleged to have been inflicted upon the plaintiff through the negligence of defendant, and without any on his part. The jury rendered a verdict in plaintiff’s favor for <$1,500, and from the judgment entered thereupon, and the order denying a motion for a new trial, this appeal is taken. The testimony shows that, plaintiff took passage on an open car of defendant, running easterly through Flushing avenue, all the seats of which were occupied, and. the rear platform of which was crowded, though there may have been standing room on the front platform. He stood facing the body of the car, upon the side step, running along the entire length of the car; and while he was in this position the conductor collected his fare, after which, when this car reached Washington avenue crossing, another car of defendant, proceeding along Washington avenue in a northerly direction, was approaching Flushing avenue. The driver of the latter car, instead of stopping, kept right on, and drove his horses against the plaintiff, knocking him off the car, whereby plaintiff received the injuries complained of. The contention that plaintiff, in standing upon the step, was guilty of contributory negligence, as matter of law, cannot be sustained. The question was properly submitted to the jury to decide as a matter of fact. If it was error for the court to refuse to charge the request of defendant “ that it was the duty of the plaintiff, on getting upon defendant’s car, to use reasonable care to put himself into as safe a place as he could procure,” the error was cured by the charge of the court that, if there was room on the front platform, it was the duty of the plaintiff to have taken his position thereupon, for the evidence shows that all the seats were-occupied, and the rear platform was crowded. After reading and carefully considering the testimony relating to plaintiff’s injuries, we do not think the verdict of the jury for $1,500 should be disturbed as excessive. For these reasons we think the judgment and order must be affirmed, with costs.

Osborne, J., concurs._