79 A.D. 32 | N.Y. App. Div. | 1903
The plaintiff was a passenger upon one of the defendant’s southbound Madison avenue cars, and had asked for and received a transfer to East Fourteenth street. Just before the car reached the crossing the conductor cried out “ transfer,” and the car came to a full standstill on the upper side of Fourteenth street. While the car was thus standing, the plaintiff, who had been riding on the rear platform, stepped down upon the step and had one foot upon the ground, when the car started, throwing the plaintiff to the street, inflicting injuries which the jury has assessed at $1,500. The learned trial court reserved decision upon the defendant’s motion to dismiss the complaint, and subsequent to the coming in of the jury decided the motion and dismissed the complaint, so that the case is left with no verdict of the jury and the motion for a new trial is not here for review.' (Griffiths v. Metropolitan Street R. Co., 63 App. Div. 86, 88.) The plaintiff appeals.
The learned court dismissed the complaint mainly upon the authority of Armstrong v. Metropolitan Street R. Co. (36 App. Div. 525 ; affd., 165 N. Y. 641), but we are of opinion that the doctrine of that case is not to be extended beyond the facts there involved, and that the evidence in the case now before us demanded that the jury should determine the question of negligence on the part of the defendant. In the Armstrong case the plaintiff testified that just before the car reached Barclay street he signaled the conductor to stop the car; that this signal was given just in front of the Astor House, which is about the middle of the block, and
The rule laid down in Dean v. Third Avenue R. R. Co. (34 App. Div. 220), cited and applied in Sexton v. Metropolitan Street R. Co. (40 id. 26), appears to us much more applicable to the' facts here presented, and more in accord with public policy. Whatever may be the rule in respect to steam railroads, we are of opinion that when a street surface car has come to a full standstill, reasonable care in its operation demands that it shall not be started without some, effort on the part of the conductor or motorman to determine whether this may be done with safety to passengers or intend
The judgment and order should be reversed, and judgment entered on the verdict.
Goodrich, P. J., Bartlett, Hirsohberg- and Jenks, JJ., concurred.
Order setting aside verdict and dismissing complaint and judgment entered thereon reversed, and judgment directed in favor of the plaintiff upon the verdict, with costs.