Majority
p. 632James Daley, as Administrator, etc., Resp’t, v. Port Jervis, Monticello and New York Railroad Company, App’lt. (Supreme Court, General Term, Third Department, Filed July 14, 1894.)
Headnote
Negligence—Question for jury.Question of company’s negligence is properly submitted to jury, where a person, while entering its car at its customary place to receive passen gers, is injured by a sudden jerk of the car.
Appeal from a judgment in favor of plaintiff.
Howell, Parshall & Schofield (Wm. A. Parshall, of counsel), for app’lt; John W. Lyon, for resp’t.
—The plaintiff, with his wife and infant child, went to the depot of the- defendant, and purchased a ticket for his wife,
p. 633
shortly before six o’clock in the evening, the train which they were to take being scheduled to start at six o’clock. After purchasing the ticket, she proceeded to the platform, and there found a car standing with doors open, apparently ready to receive passengers. He and his wife were both accustomed to riding upon the train in question. It was about the time that it was scheduled to start, and the car stood at the usual place. Other passengers were there, taking the car. The wife entered the car; following her was another lady, not a member of plaintiff’s party; then came the plaintiff, with a basket and his infant child; he lifted the child upon the platform of the car, and started to get upon it himself, when the car was jerked forward, and the child thrown off, sustaining injuries from which it died. It seems to me that the defendant was clearly guilty of negligence, for, the car being in its accustomed position at the platform, open, apparently ready to receive passengers, it was an invitation to the plaintiff to board the train. The judgment should be affirmed. There is no special principle of law involved which calls for an opinion; the facts are such as to clearly require a submission to a jury, and the finding should not be disturbed.
All concur.