34 N.Y.S. 365 | N.Y. Sup. Ct. | 1895
This action was brought by the administrator to recover damages for the negligent killing of his son, the intestate, while the latter was a passenger upon a train of trolley cars owned and operated by the defendant. The evidence in the case showed that on the 1st of July, 1894, the deceased, together with a large party of friends and companions, boarded this train at a station known as “Woodhaven.” The cars were very much crowded by the accession of the party which accompanied the deceased, and there were nothing like enough seats to accommodate all the passengers; and it would appear that all the standing places were also occupied, many of the passengers being obliged to stand on the foot rails,—a few of them, only, being fortunate enough to get into the aisles.
It is claimed upon the part of the appellant that the deceased, upon boarding the train, entered into the rear car, and that he was in the middle of the body of the car, and that after the train had started he moved from his position, and passed to the front or motor car; and it is urged that he was guilty of contributory negligence in leaving a position of safety in the second car, and occupying a
It is urged that the refusal of the court to charge that “the fact that he (deceased) was riding upon the step, instead of within the car or upon the platform of the car, was negligence per se, which bars his recovery,” was error. Upon an examination of the record, it will be seen that this request to charge was coupled with other propositions, the whole request being:
■*I ask' yotir honor'to charge that if the plaintiff’s injury arose, not from the fact of his jumping off the car, but was the result of an involuntary act, being simply falling from the step running alongside of the car, the fact that he was riding upon the step, instead of within the car, or upon the platform of the car, is negligence per se, which bars his recovery.”
■ It is clear that the defendant was not entitled to these propositions. Under the circumstances of the case, the jury had a right to find that the deceased, in riding upon.the step of the car, was not necessarily negligent. In fact, the court charged the jury that it was not for the court to say, arbitrarily, that it was negligence, in and of itself, as called for by the proposition which it' was asked to charge; and it instructed the jury to take that fact into consideration, and if they thought that under all the circumstances of the case, as laid before them by the witnesses, it was negligent for the deceased to stand 'where he stood, and in consequence of that negligence he was injured, they should render a verdict for the defendant. This was submitting to the jury all that could be required. The evidence in the case justified the jury in finding that in consequence of the crowded condition of these cars the passengers were compelled to ride upon the steps, and that they had been accepted as passengers in such a condition of the cars, and that, notwithstanding the dangerous position in which these passengers were undoubtedly placed, the cars were run at á high rate of speed, and the deceased was thereby shaken off.
Exception is also taken to the following charge of the court: The plaintiff’s counsel asked the court to charge as follows:
. “I ask your honor to .charge that a conductor permitting a passenger on a crowded car—where there are no seats or platform room—to stand on the foot rail of the car is an implied assurance that the speed will not be accelerated in a way to endanger the passenger while he stands there.”
“I desire to except, on the ground that the facts of the request are not applicable to this case, it being shown that this man was within the body of the car before the accident.” °
Thus the exception is based upon an assumption, the contrary of which the jury had a right to find. Immediately thereafter the court expressly charged the proposition that if a passenger enters the car, and obtains a place of safety, and voluntarily- leaves the place of safety, and places himself in a place of danger, and if, through putting himself in that place of danger, injury is sustained, then no recovery could be had. It will thus be seen, upon an examination of the whole case, that the rights of the appellant were protected by the learned judge in his charge, and the employés of the appellant were held to no stricter accountability than the law requires.
There are other exceptions to the charge, but it is not necessary to notice them. Upon the whole case, we are of the opinion that no error was committed which calls for a reversal of the judgment. The judgment and order appealed from should therefore be affirmed, with costs. All concur.