Menike v. Manhattan Railway Co. — 60 N.Y. Super. Ct. 116

Majority

p. 116

JULIA MENIKE, Respondent v. THE MANHATTAN RAILWAY COMPANY, Appellant.

Headnote

Negligence, when evidence of properly submitted to jury.

The plaintiff, a woman of sixty-four years, was the only witness of the accident, her story being neither corroborated nor impeached by other evidence. She testified, in effect, that she attempted to board the rear platform of the front car of a train on defendant’s elevated railroad at the station at Eighth street and Sixth avenue. The conductor was standing on the front platform of the second car, the gate of which was closed, and was leaning out and looking down the platform toward the rear of the train. As the plaintiff set foot on the car platform, the gate of which was open, the car started, the gate was slammed against her knee, she lost her footing and fell back on the station platform, receiving certain injuries. At the time of the trial the conductor was dead.

Held, that the case was properly submitted to the jury and that their verdict in the plaintiff’s favor should not be disturbed.

Before Freedman, P. J., McAdam and Gildersleeve, JJ.

Decided January 11, 1892.

Appeal by defendant from a judgment entered upon a verdict in favor of plaintiff and from an order denying a motion for a new trial.

The facts are sufficiently stated in the head note.

Davies & Rapallo, attorneys, and Brainard Tolles of counsel, for appellant.

George J. Greenfield, attorney and of counsel, for respondent.

This action was brought to recover damages for personal injuries sustained by the plaintiff through the negligence of defendant’s servants in attempting to get on board of one of

p. 117

the trains of defendant’s railway. Upon the trial the defendant produced no evidence and the case was submitted to the jury upon the testimony given by and on behalf of the plaintiff. Upon such testimony the case was clearly one for the jury. A dismissal of the complaint would have been error. All the questions as to which the trial judge was requested to charge, were submitted to the jury under a charge which fully guarded every right the defendant had. The jury were expressly instructed that they might render a verdict for the defendant although the testimony of the plaintiff was uncontradicted. Upon the whole case no exception appears of sufficient merit to call for reversal.

The judgment and ordér should be affirmed, with costs.

McAdam and Gildersleeve, JJ., concurred.