Lansing v. Coney Island & Brooklyn Railroad

45 N.Y.S. 120 | N.Y. App. Div. | 1897

Bradley, J.:

On August 2,1896, William H. Lansing with his three daughters, of whom the plaintiff was the youngest, proceeded to hoard the defendant’s car on the curve at the junction of Prospect and Jay-streets, in the city of Brooklyn. After assisting his two older daughters, Bertha and Lydia, on to the car, he lifted the plaintiff on to the car and put her on the front seat, with her back to the motorman. Then he proceeded to get on to the car, which was an open one. After the car started, the plaintiff fell from the seat to the ground and was injured. She was then about seven years of age. In the outset of his evidence the father testified that he put his daughter Bertie on the car first, then his daughter Lydia and next the plaintiff; “ the car started with a quick motion, rapid, and the •child was gone. * * * I started to get in and away went the child ■and the car slid about six feet; the car started and I was thrown into my seat; * * * I had to put her on the first seat; I calculated to shift her ; I was not given a chance to shift her; * * * Q. Where were yon when the car started ? A. Jerked back in the .seat, and out went the child. Q. Where were you when the car .started ? A. Just stepping up on the side; just getting into my .seat; just stepping to get .into it; sit down. Q. Then what happened? A. Well, it gave such a jerk that it leaned me way over, and I heard the little child holler c papa; ’ she slid off and the •car went over her foot.” He further testified that he could not say that he was inside the car at the time it started; that he was hardly seated when the car jerked and he was thrown down. The daughter Bertha testified that when the car started her father was in the car ; on the step of the car; getting into it; 'the plaintiff was seated ; her father, Lydia and the witness were standing up and were thrown into their seats. When the plaintiff was placed in the car it was partly on the crosswalk at the junction of these two streets. It. is said by the learned counsel for the defendant that the curve continued from there about thirty feet to the commencement of the straight line of the track in Jay street. This does not necessarily appear in the record, but by a diagram put in evidence it does' appear that the curve extended some distance in Jay street from the crossing. This has some importance, for the reason that the plaintiff’s father, her sister Bertha and another witness testify that the plaintiff fell from the car when it reached or struck the straight track.

Upon the theory that the accident did not occur at the starting of" the car, and until it had passed the distance of thirty feet, it is with much force urged that there is no support for the charge that it was attributable to the negligence of the defendant. No such imputation is presumed from the fact that a passenger in a car is injured by the movement of it in passing on the curve of a railroad, hut a passenger may, by his situation on a car, be so exposed to danger or injury by a rapid movement of it on a sharp curve as to require the motorman, advised of the situation and having the .car under his control, to use care for the safety of the passenger. (Werle v. Long Island R. R. Co., 98 N. Y. 650; Francisco v. Troy & Lansingburgh R. R. Co., 88 Hun, 464; Lapointe v. Middlesex R. R. Co., 144 Mass. 18.)

This cannot ordinarily be applicable to passengers seated in cars, as there may be no reasonable apprehension of danger to result to them from the movement of the cars in passing over curves in the road, and the same may be said of children in the car or under the supervision -of persons with them. In the present case the father of the ¡Dlaintiff was responsible, for the care of the plaintiff against danger so far as'he was permitted under the circumstances to exercise that care for her protection against the danger to which she was subjected. If he had time or opportunity to put her into a place of safety or to give her his protection before the car. started, and if the car started with no unnecessary jerk, then there can be no imputation of negligence against the defendant.

It may b§ observed that the duty of a common carrier towards passengers for their safety requires something more than ordinary .or reasonable card. It-calls for watchfulness and a high degree of care and skill to guard against injury to them in that relation. (Maverick v. Eighth Ave. R. R. Co., 36 N. Y. 378.) ' In view of •the circumstances, as detailed by the evidence of the plaintiff’s father, can it be said, as matter of law, that the defendant did not fail1 "tó use the care required of it and that the plaintiff’s injury was not attributable to such failure ? The defendant’s servants- having the charge of the car saw or ought to have seen the father put the child into the seat of the open car, followed by his proceeding to get aboard. The conclusion was warranted, from his evidence, that lie had no opportunity to sit down himself Or to look after the child before the car started with a quick motion and rapidly, by which he was jerked back into the seat. He adds, “ and out went the child.” Thus, according to his statement, he was prevented from doing anything by way of taking care of her before she was thrown or fell from the seat where he had temporarily placed her. He says that he put the child as far on the seat from the end as he could, intending to place her elsewhere in the car. The inference was permitted from the evidence that the misfortune was caused by the starting of the car suddenly, too quickly, by its starting before the father was able to get to his seat or to give any attention to the child, and whether she tumbled off at that moment or a moment later, the inference was nevertheless permitted that the fall of the plaintiff and her injury resulted from such starting of the car without the care which the defendant, under the circumstances, was required to exercise for the safety of the plaintiff. (Akersloot v. Second Ave. R. R. Co., 131 N. Y. 599; De Rozas v. Metropolitan St. R. Co., 13 App. Div. 296.) The view taken of the case is that the question arising on the charge of negligence of the defendant, as well as that of the contributory negligence of the plaintiff’s father, was for the pry-

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except Bartlett, J., not sitting.

Judgment reversed and new trial granted; costs to abide the event.