75 N.Y.S. 377 | N.Y. App. Div. | 1902
Lead Opinion
This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. She had a verdict for $1,500, and from the judgment entered thereon, as well as from an order denying a motion for a new trial, defendant has appealed.
On the 3d of March, 1899, the plaintiff, then upwards of seventy-five years of age, entered one of the defendant’s cars at One Hundred and Fifteenth street for the purpose of going to Forty-third street in the city of New York, and when she reached Forty-third street, according to her testimony, she indicated to the conductor her desire to get off at that street, but for some reason the car was not stopped, and after it had passed Forty-third street she called the conductor’s attention to that fact and again requested him to have the car stopped in order that she might get off. He thereupon rang the bell of the car once and it immediately commenced to slow up, and she prepared t&'-get off by going to the rear platform and taking hold of the rail of the car; that while she was in this position, and before the car had come to a full stop, its speed was, without warning to her, suddenly increased, or, to use her own language, “ the car gave a violent jerk,” and she was thrown to the street and injured. She was corroborated as to the fact that the bell was rung
We have, therefore, evidence from which the jury might have-found that, after the plaintiff had indicated her desire to get off the car, and after the signal had been given by the conductor to the motorman to stop the car for that purpose, that in obedience to that signal the motorman had slackened the speed of the car preparatory' to stopping it, and while the plaintiff was preparing to get off, the speed of the car, without notice to the plaintiff, was greatly increased and by reason thereof she- was thrown to the street and injured; and if such facts had been found by them, then they might well have found that tlie defendant had not performed its full duty to the plaintiff. After the car had commenced to slow up at her request she had a right to prepare to leave the car, and she also had' a right to assume that the conditions existing at that time would - be continued until the car had béen stopped and she had been afforded an opportunity to get off. There certainly was sufficient evidence, as it seems to me, to go to the jury upon these questions of fact.
This case is - clearly distinguishable from Armstrong v. Met. St. Rway. Co. (36 App. Div. 525), and Sims v. Met. St. Rway. Co. (65 id. 210). In each of those cases the defendant was held not liable for the reason that it did not appear that any signal to stop the car had been given to the person in control of the car, or that the plaintiff hada right to assume that the slackening of the speed of the car in each instance was for the purpose of permitting him to get off!
The judgment and order must be affirmed, with costs,
Hatch and Laughlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.
Dissenting Opinion
It seems to me that the judgment of the court in this case is founded upon the fact that the car slowed up after the plaintiff had
I, therefore, dissent.
Ingraham, J., concurred.
Judgment and order affirmed, with, costs.