Bradley v. Second Avenue Railroad

On the evening of January 28, 1895, plaintiff’s intestate boarded one-of defendant’s cars on Second avenue, near Twenty-Seventh street. Although there was ample room for him on the inside of the car, he wetit out on tile front platform, and there remained standing until the car reached Sixty-Third street, when he fell off, was run over, and received such injuries that he died about a week later. The theory of the plaintiff upon the trial was that the defendant was guilty of negligence causing the injury, in that the driver, without necessity for it, so suddenly applied the brake as to cause the car to give a violent jerk, which had the effect of hurling plaintiff’s intestate over the dashboard. The only evidence in support of this position was given by the witness Carroll, who testified that he was riding in the car, and that, “just about Sixty-Third street, this here driver, it was just as if he put the brake on, and then he let the brake out, and the

We are also of the opinion that the plaintiff failed to sustain the burden resting upon him, of proving that plaintiff’s intestate was free from contributory negligence, within the principle established in the following cases: Clark v. Railroad Co., 36 N. Y. 135 ; Hayes v. Railroad Co., 97 id. 259 ; Connolly v. Knickerbocker Ice Co., 114 id. 108; 22 St. Rep. 675 ; Coleman v. Second A. Railroad Co., 114 N. Y. 612 ; 24 St. Rep. 566 ; Cassidy v. Atlantic Ave. Railroad Co., 9 Misc. Rep. 275 ; 61 St. Rep. 149 . This is not a case where plaintiff’s intestate, by reason of the crowding of the car, was obliged to go upon the front platform. On the contrary, it conclusively appears that there was plenty of room on the inside of the car. No one was standing up in the car, and he could have had a seat, had he chosen to take one. Instead, he passed out upon the front platform,—a place obviously more dangerous at any time than the inside of the car, but especially so on this occasion, in'view of the slippery condition of the tracks, the storm, and the darkness, which made it probable that sudden stoppages of the car would occur. It was a cold night, the thermometer being only twenty degrees above zero; the tracks were icy and slippery; and it was snowing steadier during all of the time that he was upon the car. To the situation we have described, the language of the court in Coleman v. Railroad Co, supra, applies:

“The seats in railroad cars are provided for the-passengers to occupy. If, without reasonable cause, they leave the car, or place themselves on the outside of it, when in motion, they assume the hazards of so doing. ”

But in that case the plaintiff offered as an excuse that the seat which he occupied became so crowded as to render it uncomfortable for him to remain in it, and so he stepped down upon the step, which ran lengthwise of the car, for the purpose of going forward to take another seat, and while doing so was injured, and it was held that from this evidence the conclusion was permitted that he had reasonable cause for leaving his seat to obtain another. And continued the court, “ it is upon that assumption that he may be relieved from the charge of contributory negligence.” If in this case the car had been crowded so that it became necessary for plaintiff’s intestate to go upon the platform, there would have been permitted an excuse which would have made it a question for the

All concur.