74 N.Y.S. 324 | N.Y. App. Div. | 1902
Lead Opinion
This action was brought to recover damages for personal injuries resulting in the death of plaintiff’s intestate, through the alleged negligence of the defendant.
We apprehend that it is not the law of this State that a street surface railway must be built upon a straight line, after the manner said to have been directed by the Czar of Russia in the construction of a transcontinental railroad, or that, in the practical operation of the cars, they shall be so handled as never to sway or vibrate. We shall assume that such corporations may construct their lines upon approved engineering plans, with such grades and curves as shall be necessary in the practical accomplishment of the .purpose for which they are created, and that in the operation of the cars they may, subject to the liability for the negligent injuring of passengers or persons lawfully upon the highways with their property, run them in such a manner as to meet the requirements of transportation. In other words, it is not required that in the operation of street railway cars there shall be no swaying of the cars, no jars or jolts; these are reasonably to be expected in the practical discharge of the duties which are assumed by the corporation in accepting its franchise, and it is the duty of passengers to take notice of the obvious fact -that a car weighing from four to ten tons, running at a practical rate of speed, will be subject to the laws of applied mechanics, and will be swayed with greater or less violence in passing around curves, and will be jolted to some extent in passing over other tracks at street intersections. This does not give the street railway company a license to operate its cars without regard to the safety of passengers • it owes them the duty of carrying them in safety over its lines, provided, always, that the passenger has been guilty of no neglect contributing to the accident. For instance, if a passenger is occupying a seat in a car and voluntarily.leaves that seat and steps down upon
There are no presumptions that a man has been free from contributory negligence; the plaintiff ,must affirmatively show, either by direct proof, or by facts and circumstances from which the inference may be properly drawn, that the plaintiff has been guilty of no act directly contributing to the accident (Chisholm v. State, 141 N. Y. 246, 249, and authorities there cited), and this court, in the case of Brainard v. Nassau Electric R. R. Co. (44 App. Div. 613), recognized no new rule of law. It was there said : “ It is fair to assume, we think, that the deceased, as he stood upon the running board of the car, was using such means as were furnished for security to a person standing thereon,” but the court did not assert that this assumption would be justified in all cases, for it continued: “ He had ridden some distance and maintained his position, and the language of one of the witnesses who saw him is that as ‘ the jerk came * * * JVIr. Brainard was knocked off.’ The language of the other witnesses, and the fact that a person must use a support to remain upon the running ' board while a 'car is in motion, justify the inference that it was the sudden jerk which caused the fall and not any lack of making use of the supports. The car was crowded with passengers, and riding upon the running board' was not per se negligence.”
It thus appears that the facts as they were established by the evidence were the basis for the assumption that the deceased had made Use of the opportunities for holding on while in a position of danger, and not any presumption which arises that a man has been free from contributory negligence; it simply stands at the commencement of the trial at zero, and the plaintiff is called upon to
Having these fundamental principles of the law of negligence in mind, we will look at the- facts developed by the evidence in the case now before us. The accident producing the injuries complained of occurred at what is known as Rapelyea’s curve in Grand street, Brooklyn. This is approximately a tliirty-three-degree curve, with a radius of from 185 to 200 feet, and is described by one of the witnesses as a “ wide curve,” as distinguished from a right-angle curve along ordinary highways, and while it is not to be doubted that a car approaching this curve at a high rate of speed would be swayed sufficiently to disturb the equilibrium of persons standing up without support, there is nothing in the evidence to indicate that the car in use at the time of this accident was swayed enough to cause more than a momentary disturbance of the equilibrium of the passengers seated in the car, or that it would have been remembered by any of them, except for the accident which occurred at about the same time. The plaintiff’s intestate was a policeman, and two of his brotlier officers, who were in the car at the time of the accident, and who were called by the plaintiff, testify that there was nothing in the movement of the car on this occasion of which they complained. One of them says: “ I was perfectly satisfied to have the ear going as it was,” and the other says: “ Hone of us made any complaint concerning the speed that the car was going. There was nothing in the way that the car was going that appealed to us as police officers that seemed to demand our interference, so that none of us spoke to either the motorman or conductor.' So that for all practical purposes I and my brother officers were satisfied with the way the car was going. We were not making any complaint.”
The evidence is uncontradicted that Hr. Bruce, plaintiff’s intestate, entered the car of the defendant about half a mile from the scene of the accident, and occupied a seat inside of the closed car; that he was in the habit of riding in the cars of the defendant in coming home from his beat, and that he usually left the car about 300 feet beyond the curve where this accident occurred, the car
This witness testifies that this chain was about three feet and a half high; that he saw this chain at a distance of about 1,400 feet though at the time he was where he would have to look over the gate upon the right-hand side of the car, past the motorman and the plaintiff’s intestate, in order to see this chain. The evidence is overwhelming that there was no chain in use upon this car, the entrance on the left-hand side being guarded by an accordeon or folding gate. The evidence is that Mr. Bruce was not a tall man, a little taller than counsel for the plaintiff, and that he weighed about 165 to 170 pounds. He was standing, or had been standing, the last time he was seen alive by plaintiff’s witnesses, inside of the car, upon the front platform back of the motorman-, with his back against the front of the car, and to the left of the motorman, so that he must have been within two feet of the alleged chain, if there was a chain, which the witness says was three and one-half feet high, and this witness testifies: “ I seen, just as the car come around the curve and-hit the curve, Bruce was lifted off his feet and thrown over the chain,” and that his head struck the pavement first.
Assuming that Bruce.was six feet tall, and the evidence would not support such an assumption, and that the chain was three and one-half feet high, and this is the evidence, “ about three foot and a half,” and that Bruce was two feet from the chain, does airy one believe that a man weighing 165 pounds could be thrown over this chain in the manner described by the witness, particularly if we take this evidence in connection with the evidence that the passem gers within the car were not seriously disturbed by the lurching
This boy, Benjamin Coordes, is the only witness who places the speed of the car at twenty miles per hour, the others ranging from nine to fifteen miles per hour, and it is the defendant’s witness, the motorinan who "was running the car, who mentions this speed as having been attained before reaching the curve, though he says the ■car was running up a slight grade, and that the power was turned off, so that the speed was somewhat reduced at the moment of the ■accident. This witness, who appears singularly frank and straightforward, and who was the only other eye-witness of the accident who was produced upon the trial, says that he had' been running the car at the rate of about fifteen miles per hour; that he does not know when Mr. Bruce came out on the platform; that the first intimation of his presence was when he was just about to enter the ■curve; that at that time deceased “ raised his right hand partly at my side. * * * He did not touch me nor he did not speak; he raised the hand so I took that as a signal that he wanted to get •off, and whether I had thrown off my power before that or not I don’t know, but I threw off the power about that time anyhow, as I would have done whether there was a person getting off there ■or not in order to round the curve. So I proceeded to stop the car, and just simultaneously with his signaling me he caught the bolt of the gate, drew it up, pushed the gate towards the dashboard ■and stepped down on the step of the car. I shouted to him to hold on, or some words to that effect,, but he didn’t. He stepped right down in the street, and although I won’t state positively, I believe lie didn’t have hold of anything when he did step.”
Yet the evidence is undisputed that the two officers were there that they got out of the car as soon as it stopped and ran to the man who had been injured, and it is also undisputed that the conductor and motorman were there and rah to the assistance of Mr. Bruce, while two or three other passengers disappeared in the excitement. This all occurred in a thinly settled district where it would be Very strange if seven or eight people could, congregate around a man who had been thrown from a street car and seriously injured without their being seen by the person who witnessed the accident, and the car stopped as appears from the evidence within ' thirty feet of' where Mr. Bruce was lying, and at least three or four-persons must have been near Mr. Bruce within á few seconds of the-time that he received the injury.
But assuming that this witness, Benjamin Coordes,- was not discredited, and that the jury was bound to believe that Mr. Bruce was thrown over the alleged chain, there is no evidence that plaintiff’s intestate was free from negligence contributing to the accident. Coordes does not mention any act on the part of Mr. Bruce or anything from which such an inference may be drawn, and no one else,, with the exception of the motorman, pretends to have seen him at the time of the accident. All that is established by the evidence . is that Mr. Bruce left the interior of the car, where it is not to be
The defendant had erected gates or a chain for the purpose of guarding the entrance to the front platform. There was no invitation, express or implied, for passengers to occupy a place upon this platform, which, it may be assumed (for it is in accord with public policy and the safety of passengers and those occupying the highways), was reserved for the use of the motorman, whose duty it is to keep a lookout ahead and to get his instructions from the signals given by the conductor as to matters which are not within the scope of his vision, and if the plaintiff’s intestate went, out there and stood up, when there was no occasion for his leaving the interior of the car, without giving the motorman any intimation of his presence, it may be that the defendant owed him no higher duty than it owed to passengers who were inside' of the car and occupying the seats provided for them. It is not, however, necessary to determine this point.
Under such circumstances it only remains to say that the judgment should bo reversed and a new trial granted, with costs to abide the event.
Goodrich, P. J., concurred; Hirsohberg, J., read for affirmance.
Concurrence Opinion
(concurring):
I concur with my brother Woodward, in his conclusion that the judgment and order should be reversed, but I express no opinion on the question of the failure of the plaintiff to prove the absence of contributory negligence on the part of her intestate. I thus vote for the reason, that I am dissatisfied with the verdict, in that I think it is against the weight or the preponderance of the evidence. (McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66, 70.) I cannot accept the verdict as the final determination of a jury when it is based upon the testimony of a single and, to me, an unsatisfactory witness, who saw the accident from a distance, and who testifies that the lurch of this car while going around the curve threw an adult over a chain, which guarded the front platform, at an approximate height of three or three and a half féet. If such a story does not tell of an occurrence physically impossible, it seems to me that such an accident is inherently improbable. Moreover this witness is not only contradicted by the motorman, but his statement of such an exhibition of centrifugal force is utterly irreconcilable with testimony of the character of the lurch and of the comparative slightness of its effects given by several disinterested witnesses called by the plaintiff. There is another version which accounts for the accident without casting any liability on the defendant. I do not pretend to say that, it is the truth, but I make this mention in order that it may appear that there are two versions of the occurrence.
The fact that a jury has given credit to the version of the
Bartlett, J., concurred.
Willard Bartlett, J. (concurring) :
I concur in the foregoing opinion of Mr. Justice Jerks.
Dissenting Opinion
(dissenting):
I cannot concur in either of the opinions for reversal, each of which is supported by only two votes, and the new trial must, therefore, be without the settlement by a majority vote of the law applicable to the case. I cannot concur in the two main points which make up. the opinion of Mr. Justice Woodward, because I regard them as not only without justification upon .the facts, but as inherently inconsistent. He states that the accident as testified to by the plaintiff’s witnesses, if “ not a physical impossibility,” is “ certainly highly improbable; ” and to this point he adds another, suggesting but without deciding, that the plaintiff’s decedent was guilty of contributory negligence in leaving a place of safety and going out upon the platform. While the opinion avoids the expression of any positive conclusion upon this latter point, it does state as ground of reversal that there is no evidence of a lack of contributory negligence upon the part of the deceased; that is, no evidence that he took any precaution to guard against the assumed dangers of the position which he had chosen voluntarily to occupy. It is obvious that, if the platform was so securely guard’ed that the accident which is alleged to have occurred was highly improbable or physically impossible, it was not a place of danger or one where any unusual precautions would be required. Precaution is only required in the presence of possible danger. It seems to be fairly settled that the question whether the proof establishes freedom from contributory negligence, where the accident could occur without fault on the part of a deceased person, is for the jury to determine, while the assumed improbability or impossibility of the occurrence in this case finds so little support in the evidence that neither on the first argument of- the appeal, nor on the reargument afterwards directed by the court, did counsel for the defendant venture to either urge
The opinion of Mr. Justice Jbnks rests chiefly upon the statement that he is “ dissatisfied ” with the verdict as against the weight of evidence. This, conclusion, as will be seen, differs from the view of the evidence which I have adopted. I cannot see how the verdict' can be fairly regarded as against the weight of evidence. Aside from the physical conditions, the only evidence on the defendant’s, part consists in the testimony given by the motorman who was in charge of the car, and as'his credibility was a question for the jury upon well-established principles, I cannot see how evidence which the jury is at liberty to reject can ever assume the dignity of preponderance.
As the court has divided into three distinct parts upon the decision of this appeal, it seems to me that there should be union upon . one point at least, viz., that the case presents facts from which intelligent. men may draw different inferences, and is, therefore, one peculiarly within the province of a jury, whose conclusion when fairly reached, in the absence of legal error, should not be lightly overthrown.
The facts, as the jury^ must have found them, are of the essence .of simplicity. The plaintiff’s intestate, Millburn Bruce, a policeman, after his night’s work w;as done, boarded one of the defendant’s closed cars at about eight o’clock in the morning of December 16, 1899, at the car stables at Maspeth, L. I., .to go to his home on the North Hempstead road. The distance is about a half mile and the running time two minutes, the average running time being fifteen miles an hour, including stops, for the round trip to and from Flushing. The accident occurred on Grand street, while rounding a very sharp curve, known as Rapelyea’s curve. The North Hempstead road intersects Grand street with Maiden lane at a point 600 feet distant from this curve on. the Maspeth side, but Bruce was in the habit of leaving the car at a point about 300 feet beyond
When Bruce boarded the car he sat down in company with two other officers and remained seated until after the car had passed the junction of Grand street with the street on which he lived, that is, until after it had passed Maiden lane. He then stepped out upon the front platform with the view of leaving the car in accordance with his invariable habit when it reached his path, 300 feet beyond the curve. But when the car struck the curve, as it must have done almost as soon as Bruce got iipon the platform, instead of going around “ easy and gentle,” as customary, it struck the curve with a violent jolt, and Bruce was thrown over the gate or chain at the side of the platform, striking his head upon the roadway and being instantly killed. The highest estimate given as to the length of time he was on the front platform is five seconds. The time must have been very short. One of the officers testified: “ A sudden jolt of the car and I looked forward and he was gone. I looked over the side and he was lying in the street behind the car. * * * The car jolted and I looked forward and Bruce was gone. * * * I missed him as soon as the car jolted, then I missed Bruce; I looked forward and he was gone.” The inference from this evidence is a natural one, that the sudden jolt and Bruce’s disappearance were coincident, and this inference is greatly strengthened by the evidence as to the nature and extent of the jolt and its effect upon
The other officer also testified that the car was going “ pretty fast,” between ten and twelve miles an hour, and that he noticed no difference in the speed of the car as it approached the curve, and he likewise illustrated to the jury the manner in which his feet were braced and the effect which the jolt, nevertheless, had upon his body, head and shoulders, to the probable understanding of the jury, although difficult to reproduce in the printed record. He was asked : “ Q. What sort of a.movement of the car was there as it struck the curve ? Did you notice anything ? A. Well, what I got myself. As soon as it struck the curve, I went that way (illustrating) and went back again. I was not lifted from my seat at all. The forward part of my body and my head and shoulders went that way and then went back. I had my feet that way in that position (illustrating). My heels were like that. Q. Where were they placed in the floor ? A. Well, they generally stick in the grating, you know, slightly, like that.” From all this evidence there is no" difficulty in realizing how the occupants of the car were affected by the violent lurch necessarily incident to the striking of such an abrupt curve at such a high rate of speed, and also how little chance of safety there could be for any one upon the platform, unprepared for danger and unwarned of the motorman’s intention to go around the curve at a reckless and unslackened pace.
There was also an eye-witness upon the highway, a lad then of seventeen, who chanced to be within 100 feet of the occurrence at the time. He testified that the car was running very fast, at the rate of twenty miles an hour, and to quote his language: “ I seen just as the car come around the curve and hit the curve Bruce was
As against this mass of evidence the defendant had but the. testimony of the motor man. He represented the defendant at the
I, therefore, vote for affirmance;
Judgment and order reversed, and new trial granted, costs to abide the event.
