Jager v. Coney Island & Brooklyn Railroad — 91 N.Y. Sup. Ct. 307

Majority

p. 307

John Jager, Appellant, v. The Coney Island and Brooklyn Railroad Company, Respondent.

Headnote

Damages for personal injuries — ■contributory negligence — duty of motormum, on electric- car.

Upon the trial of an action brought to recover damages arising from personal injuries resulting from the defendant’s alleged negligence, it was shown that the plaintiff saw the electric car on a street surface railway by which ho was injured, approaching for a long distance, and had ample time to get out of its way, and that if he had stood where he was when he saw the car coming he would not have been injured, but that when the car came near he jumped in front of it.

Held, that no inference of negligence on the part of the railway company could be indulged in on account oí the failure of its motorman to stop the car; that under such circumstances there existed no necessity for signals, even were the same ordinarily required.

Appeal by tlie plaintiff, John Jager, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 6th day of April, 1894, upon the dismissal of the complaint directed by tlie court after a trial before tlie court and a jury at the Kings County Circuit.

Stephen B. Jacobs, for tlie appellant.

JJ. W. Slocum, for tlie respondent.

Tliis is an appeal from a judgment entered at the Circuit in a negligence ease. Tlie plaintiff was injured on defendant’s railroad track about 150 feet south of wliat is called Manhattan crossing by a car going from Brooklyn to Coney Island.

The negligence it was claimed which caused the injury consisted (1) in a high rate of speed on a public highway ; (2) the absence of signals, and (3) the absence of tlie motorman from bis post of duty. There w-as no difficulty in seeing both ways upon the track a long distance; in fact, tlie plaintiff did see the car approaching for a long distance and in ample time to get out of its way, and if lie bad stood still where lie was when he saw the car coming he would not have been injured, but be says when the car got near him he jumped in front of the car

This testimony precluded any inference of negligence in not stopping the car, or in the motorman not being at his post; in fact,

p. 308

the proof was that the motorman was at his post all the time, and a second or two before the accident he had turned on the power to increase the speed.

The plaintiff was traveling in a direction to meet the car, and had seen it, in plain view, coming towards him for a long distance; indeed, he saw it so far ahead of him that he took it for a man with a lantern, which does away with all necessity for signals, were the same required.

The criticism that the motorman was seen before the accident leaning with his back against the door is not only puerile, but it is false if it refers to the moment before the accident.

It is apparent from the facts in evidence, putting the most favorable construction on them for the plaintiff, that no negligence whatever was shown on the part of the defendant, but that the sole cause of the accident was want of care on the part of the plaintiff.

The judgment should be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.