171 N.Y. 309 | NY | 1902
This action was to recover for personal injuries alleged to have been caused by the negligence of the defendant. The accident from which the injuries resulted occurred on April 25, 1897, at the corner of Seventy-ninth street and Amsterdam avenue in the city of New York. There was a conflict in the evidence as to the circumstances attending it. So far as essential to the question involved on this appeal the *311 facts claimed to be established by the plaintiff and her witnesses may be briefly stated. At the place mentioned the plaintiff attempted to board an open horse car running upon the defendant's street railway and under its control. At least three cars had passed which were crowded, so that the plaintiff and a friend accompanying her did not attempt to board them. When the car in question approached, which was an open horse car, the plaintiff nodded to the conductor to stop. The car was stopped, two ladies alighted, and the plaintiff and her friend intended to take the places upon the car thus left vacant. The former took hold of the stanchion with her left hand, stepped upon the side step or running board, raised her foot to step between the seats, when, at a signal by the conductor, the car started with a jerk and she was thrown to the ground and received the injuries complained of. Her friend made no attempt to board the car. The evidence upon the part of the defendant was essentially different and such as would have justified a verdict for the defendant if believed by the jury.
The only question presented upon this appeal relates to the charge of the trial court. It charged: "In this particular case the circumstances testified to by the various witnesses are of such a character that I may safely say to you that if you believe the witnesses called by the plaintiff, who have testified to the circumstances under which the accident happened, it must be said that the act of the conductor was a negligent act, and such an act as may warrant a cause of action on behalf of the plaintiff." To this portion of the charge the defendant excepted. The court, after stating the position of the defendant and the circumstances under which its witnesses testified that the accident occurred, then charged that if that was the way the plaintiff got off from the car and the way in which the accident happened, she could not recover. It then charged that the burden of proof as to the defendant's negligence and as to her freedom from contributory negligence was upon the plaintiff.
It is doubtless true that it is the duty of carriers of passengers *312
to allow persons entering their car a reasonable time within which to enter, and if it is prematurely started with such unusual or unnecessary violence as to do the passenger injury while entering, a jury may be justified in finding the defendant guilty of negligence. (Keating v. N.Y.C. H.R.R.R. Co.,
We are of the opinion that the court erred in charging that, if the jury believed the witnesses called by the plaintiff, the act of the conductor was negligent and constituted a cause of action in favor of the plaintiff, and that the court should have submitted the questions of the defendant's negligence and the plaintiff's freedom from contributory negligence to the jury as questions of fact, even if the evidence given by the plaintiff was to be believed. (Mulhado v. Brooklyn City R.R. Co.,
The portion of the charge excepted to practically withdrew from the consideration of the jury any question except the truthfulness of the plaintiff's evidence and tended to withdraw from it the determination of the facts established by the proof and the inferences to be drawn therefrom. Such an instruction was improper. (Dolan v. D. H.C. Co.,
It follows that for the error pointed out the judgment should be reversed and a new trial ordered, with costs to abide the event.
PARKER, Ch. J., BARTLETT, HAIGHT, VANN, CULLEN and WERNER, JJ., concur.
Judgment reversed, etc.