Van Winkle v. Brooklyn City Railroad

Headnote

A street railroad company is not chargeable with negligence for permitting passengers to place baskets between their feet —passengers attempting to pass over the obstruction assume the risk a¡nd danger of so doing.

Appeal from a judgnient in favor of the plaintiff, entered upon a verdict directed at the Kings County Circuit.

This action was brought for the recovery of damages resulting to the plaintiff from a fall from one of the passenger cars of the defendant. The plaintiff testified that she took an open horse car on the surface railroad of the defendant, and sat in the second or third seat facing the horses, the wheel box was in that seat, and there was a man there then with a basket between his feet about a

foot high and eighteen inches long. That man was there with the basket when the plaintiff took the car, and she went past him when .she got in. When the plaintiff desii*ed to leave the car it was stopped by the conductor, and then the man with the basket was the only person between the plaintiff and the end of her seat, and there was a man opposite him on the facing seat with an umbrella and both had their feet out in the passage-way between the seats. The following is an extract from the testimony of the plaintiff, given upon her cross-examination by the defendant’s counsel: “ I got up to leave the car ; I just stepped right out to get out and I didn’t see the basket until my foot came in contact with it. I didn’t look to see where the basket was; I thought to step across the man’s feet and to get out the best way I could across the man’s feet.”

“ Q. Did you try to step over the basket? A. Yes, sir. I tried to step over their feet 'and the basket both, and I catched my foot; I saw the basket before I raised my foot so as to step over it; the man’s legs were not over the basket, but they were out; the basket was between his feet; I tried also to step over his feet, and with that I catched my feet; my feet hit against the car-wheel box.”

The plaintiff fell into the street and sustained the injury complained of in this action. The complaint was dismissed at the close of the plaintiff’s case, and the plaintiff appealed from the judgment of dismissal.

The court at General Term said: “ The counsel for the plaintiff asked to go to the jury upon the two questions, the construction of the wheel-box and the allowance of the obstruction in the passageway. There was an entire absence of proof to show the construction or condition of the passenger car faulty or defective in any way, and no negligence can be charged against the defendant in that respect. Neither do we conclude that the defendant or its agents were chargeable with negligence or inattention for permitting one passenger to carry his basket in the car and place it on the floor between his feet, and another to take with him his umbrella. It is quite usual and customary for passengers to carry with them handbags and baskets and umbrellas, and other small parcels, and no rule is shown for their exclusion. It may become the duty of conductors to cause their removal upon complaint of inconvenience or annoyance, or obstruction to other passengers, but without some such

complaint or request we are unaware of any rule whicli would require their removal. If this plaintiff had requested the conductor to clear the passage-way for her exit from the car, it would have been his duty to comply with her request, and so far as the case discloses the facts, the conductor of the car was without knowledge of any 'obstruction in the patesage-way between the seats. Our examination fails, therefore, to disclose any negligence of the defendant, and it is unnecessary to make any examination respecting the contributory negligence of the plaintiff. Yet, upon this point, it is to be said that the plaintiff, with full knowledge of the obstruction in her pathway, undertook to pass, unassisted, between the two men, over the basket and umbrella, and by that act plainly assumed all the dangers and risks of such a passage, and the disastrous results of such a hazardous undertaking cannot be charged against the defendant.

“ The judgment should be affirmed, with costs.”