102 N.Y.S. 1133 | N.Y. App. Term. | 1907
Lead Opinion
Judgment and order are affirmed, with costs, on the authority of Schuukler v, Central Crosstown R. R. Co., .104 App. Div. 630, 95 N. I. Supp. 1146, with leave to the plaintiff to appeal to tbe Appellate Division.
GILDERSLEEVE, P. J., and BLANCHARD, J., concur.
Dissenting Opinion
(dissenting). While plaintiff was attempting to board one of defendant's cars at or near the corner of 119th street and Third avenue, and while using all due and proper care for her own safety, and without any warning the car which she was attempting to board, as aforesaid, it started suddenly, throwing plaintiff off said car. That tbe injuries so sustained were caused by the defendant's negligence, by the reckless rate of speed at which defeudaut operated said car, by tbe incompetency of defendant's agents to give plaintiff a `reasonable opportunity to board said car, by reason of defendant's failure to give plaintiff warning of any kind that said car was about to start, and without any negligence on the plaintiff's part. The foregoing is a condensed statement of the allegations of the complaint. A motion to dismiss ivas grauted, on the ground, appareutly, that the complaint failed to allege that the car. was standing still when the plaintiff attempted to board it. It seems to me tbat the complaint states a cause of action under section 481 of the Code of Civil Procedure, and that plaintiff was entitled to prove, if she could, that the car was stauding still. Her inability to so prove prima fade, would have resulted in a nonsuit. It is urged that Schmukler v. Central Crosstown R. Co., 104 App. Div. 630, 93 N. Y. Supp. 1146, is decisive of this appeal. In that case, however, no opinion was rendered by the trial justice nor by the Appellate Division, and it appears to be conceded that the appellant filed no brief, so that the affirmtnce was practically by default Nevertheless, it is insisted by the respondent here that the complaint in this action is a replica of the complaint in "Scbmukler," with the exception that the latter was an "alightiug" accident, while in this case it was a "boarding" accident, and that therefore this judgment must be affirmed. While these two complaints are in many respects similar, there is a difference. Mrs. Cohen's averment is that the car "started suddenly." Webster's definition of "start" is "To cause to move or act; to act, going, running, or flowing, as to start a railway train," etc. Thus it is to be implied that "started suddenly" means an immediate change from repose to activity, from being stationary to going forward or backward. In the Scbmukler complaint the mingling of the words "sudden start or lurch or movement" convey the idea that the car was moving when he attempted to alight. The definition of "lurch" is a "A sudden roll of a ship to one side, as in heavy weather." The synonym of "movement" is "motion," which "expresses the general idea of not being at rest." See Webster's Dictionary, I tbink the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.
