123 N.Y. 391 | NY | 1890
Upon the undisputed evidence, we are of the opinion that the plaintiff failed to make out a case of negligence against the defendant.
The evidence of the sister of the plaintiff is as favorable as that of any witness called on his part. She says when the plaintiff finished speaking with the conductor of the open car on which they all were, he stepped down from- the rear platform to the outside step of the car, which runs its entire length,
It appeared that the smallest distance between the tracks at or near this spot was such that there was a space between the outside step of the open car and the body of the closed car of at least seventeen inches. The place where the accident happened was a crowded street, and horse-cars were continually there passing each other.
The company had some open cars that were seven inches wider than the one upon which the plaintiff was riding. Open cars had been in use daily during the summer months for twenty years. All the closed cars were- of an uniform width. Thousands of persons during this long period had been seen riding at or near this spot on the outside- steps of the open cars at times when they met cars, coming- from the opposite direction and the cars had passed each other, and no one had ever been hurt nor had any accident ever before happened there or at any other portion of the road from any such cause. The space between the tracks was about uniform along the length of the defendant’s road, sometimes a few inches more or less.
At the place where this accident occurred, and about the same time in each day, cars were passing each other certainly every half minute.
Policemen and employes of the road frequently stood at this place or near it between the rails of the up and down tracks when cars passed each other and no one had ever been hurt. This was an every-day occurrence. The inspector of the defendant,, who had been in its employment for thirty-four
Upon these facts, we cannot see how- jhe defendant can be convicted of negligence, because it did not have more' space between its tracks. For twenty years such space had been sufficient, although precisely the same opportunities for accidents had arisen many times daily during that period, and yet not one had occurred. Clearly the accident was one not to be apprehended, and a failure on the part of the defendant to take such measures as would make its happening under any circumstances a physical impossibility, cannot be said to be an omission of duty. The accident was not to be apprehended, because thousands of passengers on the steps of an open car had uniformly, and for twenty years, passed in safety the car going in an opposite direction. The body of the plaintiff must, with reference to the car, have been at a most extraordinary and unusual angle at the time of the accident in order that it should have occurred at all. The defendant was not bound to so construct its tracks that it would be impossible for-a passenger to be struck by another car while he was standing on the' outside of an open one.
There was no negligence' on the part of the conductor in failing to prevent the plaintiff from going on the step or in failing to warn him of any possible danger which might arise therefrom.
We think the judgments of the court below were erroneous and they should be reversed and a new trial ordered, with costs, to abide the event.
All concur.
Judgments reversed.