Armstrong v. Metropolitan Street Railway Co.

48 N.Y.S. 597 | N.Y. App. Div. | 1897

Per Curiam:

The plaintiff was a passenger on an open car of the defendant. While seeking to alight from the car he fell and was injured. He testified that having signaled the conductor his desire to alight, the signal was recognized and the car slowed down. He thereupon arose and stood on the platform, when, as he expresses it, “ the car went right from under me — went forward,” and he fell into the street, alighting upon his feet, but subsequently sinking down. No testimony was given to show that the car started suddenly or accelerated its motion, or that there was any jerk or jolt, other than may be inferred from the plaintiff’s statement that “ the car went right from under me.”

For the defendant two witnesses testified that the plaintiff fell while stepping off the car, which was in motion at the time, and that there was no change in the movement of the car. The defendant contends that the testimony of the plaintiff was insufficient to support the charge of negligence* on its part, and in this we agree. Though interrogated several times on the subject, the plaintiff would say nothing more nor else of the movement of the car than that it “ went from under me.”

Of course, the car did not go from under him. This is in reality not the statement of a fact, but a statement of the sensation the plaintiff experienced at the time. It might have been due to his neglect to properly maintain his balance or secure himself from the jolt .or oscillation which the movement of a car at all times will occasion, either to a greater or less extent. The probability that it resulted from his own fault was just as great as that it resulted from the fault of the defendant, and the jury were not justified in ascribing it to the latter cause, in the absence of proof to establish that there was any jerk or change in the motion of the car, and in the face of positive evidence -to the contrary. In fact, it is difficult to see how the accident could have occurred as plaintiff states it, assum-r ing that his testimony as to his position was correct. He says that he was not on the step; that he was standing on the hack platform of the car (as we infer from the record before us),"in front of the seat from which he had arisen. If the motion of the car had been suddenly accelerated, it would seem as if the plaintiff should have been thrown over or against the back dashboard, and not sidewise into the street. The motion for a nonsuit should have been granted.

The judgment and order appealed from should he reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.