35 N.Y.S. 918 | N.Y. Sup. Ct. | 1895
On the evening of January 28, 1895, plaintiff’s intestate boarded one of defendant’s cars on Second avenue, near Twenty-Seventh street. Although there was ample room for him on the inside of the car, he went out upon the front platform, and there remained standing until the car reached Sixty-Third street, when he fell off, was run over, and received such injuries that he died about a week later. The theory of the plaintiff upon the trial was that the defendant was guilty of negligence causing the injury, in that the driver, without necessity for it, so suddenly applied the brake as to cause the car to give a violent jerk, which had the effect of hurling plaintiff’s intestate over the dashboard. The only evidence in support of this position was given by the witness Carroll, who testified that he was riding in the car, and that, “just about 63d street, this here driver, it was just as if he put the brake on, and then he let the brake out, and the car gave a good jerk,—what I would call a good one, anyhow; and after that I seen this man going over the dashboard. I seen him myself.” While the witness says he saw the intestate going over the dashboard, he does not testify that he saw the driver apply the brake, but asserts, instead, that the jerk which he experienced seemed to him as if the driver had put the brake on, and then let it off. Again he describes the jerk in the following language: “It was just as if there was a rock or something on the car track, or anything like that.” We do not think this evidence was sufficient to authorize the jury to find that the defendant’s servant was guilty of negligence in applying the brake so suddenly and sharply as to cause plaintiff’s intestate to be hurled from his position on the platform.
We are also of the opinion that the plaintiff failed to sustain the burden resting upon him, of proving that plaintiff’s intestate was free from contributory negligence, within the principle established by the following cases: Clark v. Railroad Co., 36 N. Y. 135; Hayes v. Railroad Co., 97 N. Y. 259; Connelly v. Ice Co., 114 N. Y. 108, 21 N. E. 101; Coleman v. Railroad Co., 114 N. Y. 612, 21 N. E. 1064; Cassidy v. Railroad Co., 9 Misc. Rep. 275, 29 N. Y. Supp. 724. This is not a case where plaintiff’s intestate, by reason of the crowding of the car, was obliged to go upon the front platform. On the contrary, it conclusively appears that there was plenty of room on the inside of the car. No one was standing up in the car, and he could have had a seat, had he chosen to take one. Instead, he passed out upon the front platform,—a place obviously more dangerous at any time than the inside of the car, but especially so on this occasion, in view of the slippery condition of the tracks, the storm, and the darkness, which made it probable that sudden stoppages of the car would occur. It was a cold night, the thermometer being only 20 degrees above zero; the tracks were icy and slippery; and it was snowing steadily during all of the time that he was upon the car. To the situation we have described, the language of the court in Coleman v. Railroad Co., supra, applies:
“The seats in railroad cars are provided for the passengers to occupy. If, without reasonable cause, they leave the car, or place themselves on the outside of it, when in motion, they assume the hazards of so doing.”
