Stastney v. Second Avenue Railroad — 61 N.Y. Super. Ct. 104

Majority

p. 104

PETER STASTNEY, Respondent v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

Headnote

Negligence, action to recover damages caused thereby.

The plaintiff was a passenger on one of defendant’s cars going up-town. At a point on First avenue, between 65th and 66th streets, the track was blocked by a broken-down van or truck, and'the passengers, including the plaintiff, at the request of the conductor, engaged in the work of moving the car from the track and around the obstruction, that it might continue its journey. While thus engaged another car of defendant’s, coming down the avenue, met with the same obstruction, and its conductor and driver proceeded to jump the car around on the east side of the track, and the same side upon which the plaintiff was engaged with the conductor, and thereby the plaintiff was caught between the cars and injured. If the car going down had been jumped to the west, as it should have been, the accident would have been avoided.

Held, that the plaintiff was lawfully on the street at the time, by request of the conductor of the up-town car, and had no warning of the danger, and cannot be said to have contributed to the collision or to the bringing on of the injury to himself, and it was for the jury to determine the question of negligence of the defendant in the premises. The motion of defendant’s counsel to dismiss the complaint was properly denied, and the verdict of the jury was sustained by the evidence.

Before Freedman and McAdam, JJ.

Decided May 2, 1892.

Appeal from judgment entered on verdict in favor of the plaintiff, and from an order denying a motion for a new trial.

Merrill & Rogers, attorneys, and Payson Merrill of counsel, for appellant.

Louis J. Grant, attorney and of counsel, for respondent.

Plaintiff was, on February 27, 1890, a passenger in one of the cars going up-town. When the car reached a point on First avenue between 65th and 66th streets, it found the track blocked by a broken-down furniture van or truck. The passengers were requested by the conductor to get out and assist in getting the car off the track, so as to get around the truck that the car might continue its journey. The passengers, among them the plaintiff, obeyed the request, and while thus assisting, a car coming down the avenue, finding itself blocked by the same obstacle, “ jumped ” the track, but instead of “ jumping ” to the West, which would be the proper thing for it to do, it “ jumped ” to the East, and caught the plaintiff between the cars, doing him the injuries of which he complains. If the down-town car had “jumped” the track to the West as it should have done, the danger would have been avoided, but “ jumping ” toward the East naturally brought it in collision with the up-town car, and in this manner the damage was done. The plaintiff was lawfully upon the street at the time, by the invitation of the defendant’s conductor in charge of the up-town car. He had no warning of the danger, and cannot be said to have contributed to the collision or to the bringing the injury upon himself.

The learned trial.judge submitted the question of negligence to the jury, and they found for the plaintiff, on evidence which sustains their verdict, which was moderate in amount. The defendant’s counsel moved to dismiss the complaint on the ground that the testimony and circumstances detailed neither proved negligence on the part of the defendant nor freedom from fault on the part of the plaintiff. The motion was properly denied, as the evidence and the inferences to be drawn from it were matters about which minds might differ, and it was for the jury to determine the question of fact involved.

p. 106

No error was committed during the trial, and the judgment and order denying the motion for a new trial must be affirmed, with costs.

Freedman, J., concurred.