12 N.Y.S. 930 | New York City Court | 1891
Plaintiff brought this action to recover damages for injuries sustained by him through the alleged negligence of the driver of one of defendant’s cars. It appears from the testimony of the plaintiff, a blacksmith by trade, that on the afternoon of Saturday, August 10, 1890, at the close of his day’s work, he took passage on an open car of the defendant, sitting on the first seat back of the driver, to go to his home. The place where he in
It is claimed by the learned counsel for the appellant that the evidence was insufficient to establish any negligence on the part of the defendant; that the driver had a right to release the brake, and urge the horses forward, to prevent them from stopping between the cross-walks in violation of the city ordinances; and he cites the case of Hayes v. Railroad Co., 97 N. Y. 259, as authority for his contention. In that case, however, the circumstances were entirely different from the one now before us. There the plaintiff was riding upon the front platform of the car, although there were vacant seats inside. He stepped down on the front step to give some passengers an opportunity to enter, and, as he was in the act of stepping up again, the car in starting “gave a sudden movement," causing him to fall. There was no evidence that the driver started his horses in any unusual or negligent manner. The court of appeals simply held that the fact “that the car ‘gave a sudden movement’ is entirely consistent with the supposition that, having been still, the horses were started in a careful and prudent manner. ” We think the circumstances in the case at bar were so entirely dissimilar that the case cited doés not support the contention of defendant’s counsel. Here, plaintiff was riding on the car. He notified the driver twice to stop, so that he might alight. The horses came to a walk. He stepped down on the side step, holding on, and waiting for the car to come to a stop, before he alighted, when, suddenly and without .warning, as plaintiff testifies, the driver releases the brake, strikes his horse, and the horses plunge forward, thereby giving the car a jerk so violent as to break plaintiff’s hold, and throw him onto the street on his hip. True, the driver denied that he let off the brake or struck his horse. That issue, however, the jury have decided in plaintiff’s favor; the learned trial judge having charged the jury that, if they beheved the statement of plaintiff and his witnesses, it was for them “to determine whether the driver, under those circumstances, exercised ordinary care. ” Clearly, the contest of testimony made the case one proper to submit to a jury, (Holan v. Railroad Co., 87 N. Y. 63,) and we can see no reason for disturbing their verdict.
Defendant’s counsel requested the court, inter alla, to charge as follows: “It was the right and duty of the driver of the car to keep the car in motion-
Nor do we think that the exception to the refusal to charge at folio 268 was well taken. All that the defendant had a right to ask on the point contained therein was fully covered by the requests which'were charged in folio 269. We are accordingly of the opinion that the judgment and order appealed from should be affirmed, with costs.