Miller v. Manhattan Railway Co. — 56 N.Y. St. Rep. 189

Majority

p. 189

Edward Miller, Resp’t, v. The Manhattan Railway Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

1. Negligence—Railboads.

Where the carrier receives a passenger when the car is so overcrowded that there is difficulty in opening and shutting the gates, the guard cannot, without notice to him in some way, throw him off the car to remedy the overcrowding.

8. Evidence—Negligence.

Where the complaint, in an action for negligence, states that the plaintiff was disabled from his labor and suffered a loss of power to labor, proof of the wages he was earning before, and since the accident, is proper.

3. Witness—Cbedibility.

Where the testimony of a witness is false, it is not the rule that the jury must, though they may, disregard his whole statement.

Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial

Davies, Short & Townsend, for app’lt; Charles J. Patterson, for resp’t.

The case shows that the plaintiff is a man of over sixty-eight years of age; that on the 10th of May, 1891, he was carried as a passenger by the defendant to the City Hall station. The car was crowded on the inside and the plaintiff stood upon the platform, because he could not get in the car. Upon an arrival at a station, the platform passengers crushed up so as to let

p. 190

the train deliver and receive passengers. At one of the stations, either Eighteenth or Fourteenth street, the defendant’s guard suddenly, and without notice, gave the plaintiff a violent push that carried the plaintiff off the train upon the platform and threw him violently down so as to throw him upon the back of his head. The guard did this in closing the gate. The plaintiff did what he could to crowd himself away from the gate, but the pressure was so great, that he could not do so. The act of the guard- has no justification. The carrier received him as a passenger and overcrowded the car so that there was difficulty in opening and shutting the gates. The guard could not, without notice in some way to the passenger, throw him off the car to remedy the effects of the overcrowding. The defendant was liable for his act. Dwinelle v. N. Y. C., etc., R. R. Co., 120 N. Y., 117 ; 30 St. Rep., 578 .

The damages are not excessive. The plaintiff was a shoemaker and was earning $25 per week. He was prevented, by his injuries, from doing his work for some five weeks, and he was confined to his bed for ten days. His earning power is reduced from $25 per week to $7 and $8 a week. The proof of the wages the plaintiff was earning before the accident and since was proper. The complaint states that the plaintiff was disabled from his labor and suffered a loss of power to labor. The evidence is directly in support of the complaint.

The admission of the testimony of Dr. Woodworth was not erroneous under the case of Strohm v. N. Y., etc., R. R. Co., 96 N. Y., 305 .

The evidence of the expert was not to the effect that the results of the injury were possible or contingent. The medical opinion was clear that the tenderness of the muscles, which he found on plaintiff, was the result of the injury in question. The charge was free from objection. If the plaintiff was correct in his narrative of the injury, there was no defense for it. If he refused to get out of the way of the gate when he could do so, he could not recover. There was proof from which the jury could find that the guard intended to pvush the plaintiff, and the statement of the judge that it was not justifiable to do that, was proper under our view of the testimony. Tire request, in respect to an intentional endeavor by plaintiff to make the company liable-for ailments which existed before the accident, was proper. It is not the rule in such a case that the jury must disregard his entire statement. The jury were told that if the witness was false they might discredit his testimony entirely.

The judgment and order denying a new trial should be affirmed, with costs.