Gilbert v. Third Avenue Railroad — 8 N.Y. St. Rep. 152

Majority

p. 152

James A. Gilbert, App’lt, v. The Third Avenue Railroad Company, Resp’t.

(New York Superior Court, General Term,

Filed February 14, 1887.)

Headnote

1. Negligence—Street Railroad—Not negligent per se to get on MOVING CAR.

It cannot be said, as a matter of law, that a person getting upon a car about to stop is not guilty of negligence on his part, but the rule is that such an act is not, as a matter of law, contributory negligence. It is for the jury to say, in each case, whether, under the circumstances of .the case, the plaintiff was or was not guilty of contributory negligence.

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2. Same—Refusal to charge.

The judge is right in refusing to charge propositions of law which have no evidence in the case to support them.

3. Same—Evidence—When competent.

A witness was asked, and testified, in an action for damages for injuries resulting in being thrown while trying to »et on one of defendant’s street cars, to the exislence of a fact, viz.: Wlnit had happened on the car the day before, when a person, placed upon the step of the car as plaintiff described himself to have been, at the time of the accident, when the-car suddenly started. Held, that the evidence, in its nature, was not incompetent.

4. Same—Objections—Effect of general objection.

The objection was general. In such a case the decision of the trial judge-will be sustained, unless there be some ground which could not have been obviated if it had been specified, or unless the evidence, in its essential nature, is incompetent.

5. Same—Hot Available.

A general objection is insufficient to make an objection that the answer-called for the opinion of a witness, available.

Appeal from judgment in favor of defendant entered on the verdict of the jury.

John Cockran, for app’lt; W.m. N. Cohen, for resp’t.

Plaintiff presents two rulings of the trial court, upon which he asks that the judgment, be reversed.

The first to be considered is the refusal to charge in substance that it is not negligence for a person to get on a. street car while in motion. The court bases its refusal to charge as requested on the ground that there was no proof to justify the jury in finding that the car slowed up for the plaintiff to get on the car, the court saying, “It is not worth while, gentlemen, that I should instruct you under' what circumstances some other plaintiff in some other case might make an attempt to board a car before it has fully-stopped.”

The plaintiff on the trial had testified that the car stopped when he attempted to get on; that he had one foot on the platform and one foot on the step, when the conductor rang the bell, the car started and he was thrown off. From his story there was no evidence that the car had slowed up, and nothing upon which to base such a request. The plaintiff’s testimony was uncorroborated. The defendant called the driver and the conductor of the car and a passenger that helped plaintiff off the car after the accident. From their testimony, it appears that plaintiff was first seen being dragged after the car and that before that time the car did not stop or slow up.

If this story was true, then there was no evidence to show that defendant was guilty of any negligence, and it did affirmatively appear that plaintiff was guilty of con

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tributory negligence. The court left it to the jury to say which story they believed under the charge, to which no exception was taken; and the jury having found for the defendant, it must be presumed that they did not believe plaintiff’s testimony.

The court was not requested to leave it to the jury to say whether under the circumstances of the case, plaintiff was or was not guilty of contributory negligence; but plaintiff, in substance, requested the court to charge that certain acts of the plaintiff were not as matter of law contributory negligence. It cannot be said as a matter of law that a person getting upon a car about to stop is not negligent on his part, but the rule is that such an act is not as a matter of law contributory negligence. It is for the jury to say in each case whether, under the circumstances of the case, the plaintiff was or was not guilty of contributory negligence.

As was said in Eppendorf v. The B. C. and N. R. R. Co. ( 69 N. Y., 195 ): “The sole question to be détermined here so far as relates to plaintiff’s alleged contributory negligence was the character of the plaintiff’s acts under the circumstances existing at the time. ”

What would be contributory negligence under circumstances not proved could not assist the jury in finding on this question then presented.

The second and more serious question was the exception to the decision of the court in overruling the objection to the testimony of an experiment .made upon the car after the accident. The objection was general. No ground was stated why the testimony should be excluded and in such a case the decision of the trial judge will be sustained, unless there be some ground which could not have been obviated if it had been specified, or unless the evidence in its essential nature is incompetent. Quinby v. Strauss, 90 N. Y., 664 .

And a general objection is insufficient to make an objection that the answer called for the opinion of a witness, available. Merritt v. Briggs, 57 N. Y., 651 .

Under this rule the evidence will not be held to be erroneously admitted because the witness was not shown to be an expert, or because it did not appear that the identical circumstances which surrounded the plaintiff and the identical conditions under which he acted existed at the time the experiment was made.

The witness was asked to and testified to the existence of a fact, viz.: What had happened on the car the day before. No opinion was asked, but he was requested to state what he had seen when a person placed upon the step of

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the car as plaintiff described himself to have been at the time of the accident, when the car suddenly started.

This evidence was not in its nature incompetent. The plaintiff testified that he stood on the steps and platform of the car and, by a certain jerk of the car in starting, was thrown off.

Testimony of competent witnesses to show that a person standing in the same position was thrown in a different direction when the car was suddenly started, would certainly be competent evidence’ for the jury in determining on the conflict of evidence as to the manner in which the accident happened.

No case is cited by the plaintiff which holds such evidence incompetent and we do not think that it was error in the court to overrule the objection taken.

The weight of evidence was largely in favor of the defendant. The question was fairly submitted to the jury by the charge to which no exception was taken and we are satisfied that no error was committed that calls for a reversal of the judgment.

Judgment should, therefore, be affirmed with costs.

Sedgwick, C. J., concur.