3 Lans. 469 | N.Y. Sup. Ct. | 1871
By the Court —
The judge at the circuit properly refused to nonsuit the plaintiff, and also to direct a verdict in favor of the defendant, at the close of the evidence. It was clearly a case to be submitted to a jury upon all the testimony on the point of the defendant’s negligence, and also upon the point of the contributory negligence of the plaintiff. Upon the question of the contributory negligence of the plaintiff in attempting to get upon the cars at that point, it was most clearly a question for the jury to determine, and one upon which their verdict must be deemed conclusive. The cars were not, it is true, standing, at the time the plaintiff attempted to enter, at the place provided by the defendant for passengers to enter, but were standing across the street by which the plaintiff was approaching for the purpose of taking her passage on the same cars. The testimony shows that the cars were extended entirely across the street, between the plaintiff and the depot where passengers most usually take the cars, and there was no way for the plaintiff to get to the depot except by passing over the platform of the cars, or by
On the other question of the negligence of the defendants servants in charge of the train on that occasion, it is equally clear that the case was one for the determination of the jury and not of the court. The brakeman had seen the plaintiff and her sister approaching, and without looking to see whether they were about to get upon the cars standing right in their way, gave the signal to the person in charge of the engine to start. The engine in obedience to this signal was instantly started, and as the evidence tends to show, with a sudden and violent motion or jerk, which threw the plaintiff down just as she was about rising upon the lower step of the platform of the car and holding to the iron rail. The injury was caused by this fall and the moving cars, as all agreed. It appears from the testimony of the defendant that the engineer who ran the train was not in charge of the engine at this time nor upon it, but that it was in the charge of the fireman alone, whose only experience upon an engine was that of fireman for two and a half years. In the case of O’Mara v. Hudson River R. R. Co. (38 N. Y., 445), it. was held, that the running of an engine across the frequented streets of a
The judgment must therefore be affirmed. •