Rott v. Forty-Second St. & Grand St. Ferry R. R. — 56 N.Y. Super. Ct. 151

Majority

p. 151

ANNA ROTT, Appellant v. THE FORTY-SECOND ST. & GRAND ST. FERRY R. R. CO., Respondent.

Headnote

Negligence—Street cars.

Where the question of the negligence of the conductor in starting a car depends on the inferences to be drawn from surrounding circumstances, the case should go to the jury.

Before Sedgwick, Ch. J., and Ingraham, J.

Decided June 20, 1888.

p. 152

Appeal by plaintiff from judgment dismissing complaint, upon the merits entered upon order made at the trial before the jury.

The facts appear in the opinion.

John Fennell, for appellant.

Freling H. Smith, for respondent.

The action was for damages from negligence alleged in the complaint. The plaintiff according to her own testimony and that of her daughter, accompanied her daughter into a car of defendant. The daughter testified that she told the conductor that the plaintiff was not a passenger, and the plaintiff turned and proceeded to leave the car. At a point when she was about to step from the platform down to the street, as she testified, the conductor, as she also testified, rang the bell. The car moved forward and the motion threw the plaintiff upon the street. At the end of the testimony, the learned judge thought that there was not enough testimony to justify the jury in finding that the conductor had any reason to think that the plaintiff did go upon the car as a passenger, or that he knew that she was proceeding to leave the car or intended to leave it, at the time he rang the bell.

The declaration to the conductor that the plaintiff was not a passenger, accompanied with circumstantial evidence such as the place where he stood, his field of vision there, the probability of the direction of his observation in the ordinary performance of his duty, made the case such that it should have been submitted to the jury.

The judgment is reversed and a new trial ordered, with costs to abide the event.