85 N.Y.S. 960 | N.Y. App. Div. | 1903
Lead Opinion
The plaintiff showed an accident, but he did not prove actionable negligence. I think that while riding upon the step of the car he, in the language of Cullen, J., assumed “ the risk ordinarily incident to such a position from the jolts and jars of the moving car., the unevenness of the track and the turning of curves.” (Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13, affirmed.) (See, too, Ayers v. Rochester Railway Co., 156 N. Y. 104; Francisco v. Troy & Lansingburgh R. R. Co., 78 Hun, 13.)
The plaintiff boarded the car at the corner of Richard and Myrtle avenues in Glendale where the territory is “ free ground — almost farms.” The car was then so full of passengers that he was compelled to stand upon the step and, so standing, to ride. He testifies that the car, while in motion, “ gave a jump and thro wed me off,” but on cross-examination he expatiated: “This car * * * got agoing very fast—just like it always runs there; they run fast out there in the country and this car was running along just like they all run .* * * and I was hanging on there ' with my two hands onto this rail. * ' * * All at once the car gave a" jump and then I fell off. I couldn’t state exactly whether it jumped upwards or jumped ahead, but I know I fell off. After I fell the car stopped; it was still going as fast as it could. I didn’t say that it jumped ahead. She didn’t jump sideways, she jumped up and down, I suppose, kind of going like this (illustrating), something like 4 greyhound running.” There is no other evidence as to speed or motion, and there is no evidence that any other person noticed unusual speed or motion, or that any passenger other than this plaintiff was affected by them.' It is thus evident that the plaintiff knew of the usual speed of the cars in this neighborhood'.; that this car was going only. at. the usual rate and that he must travel while standing upon the step. He also testifies that when he fell or was thrown off the car did not depart from a
I have attempted thus to indicate the salient feature which, to the minds of the courts respectively, warranted submission of these cases to the jury. JBut where can I find the corresponding act or oniission. for a basis of negligence in the case at bar ? For I find upon the evidence "nothing but a natural motion, constant and incidental to the
I do not understand the rule to be that there is any implied assurance that the car will be run so as to make it safe in the sense that .such assurance is insurance, but that the obligation is that of a high degree of care, and I do not believe that this obligation assures the plaintiff against the risks ordinarily incident to his place, due to the jars and jolts natural and normal to the progress of the car, when its rate of speed is not shown to be unlawful or negligent per se. I think that the plaintiff cannot be heard to say, “ I was thrown off the car ; therefore, the rate of speed was negligence,” and so insist that he has thereby given some proof of actionable neglect. (Francisco v. Troy & Lasingburgh R. R. Co., supra.) I do not construe the language of the JDochtermann case in any sense to the contrary. In the sentence : “ Now, while it is not negligence per se to stand on the platform of a street car, it is but fair and reasonable that the person so riding should assume the risk ordinarily incident to such a position,” etc., I think that the expression “ so riding ” uefers to a person standing on the platform, and as thus standing riding on the platform, i. e., that the force of “ so ” is confined to this sentence, and does not refer to the prior sentence so as to relate only to a person voluntarily and without necessity riding on the platform. Moreover, it may be said that this plaintiff voluntarily rode there. He exercised his free will when he chose to take the only position which was open to him. There was necessity for riding there
The judgment should be affirmed, with costs.
Goodrich, P. J., and Bartlett, J., concurred; Hirsohberg, J.,. read for reversal, with whom Woodward, J., concurred.
Dissenting Opinion
I dissent from, the decision of the court in this Case as I think a, question was presented by the plaintiff’s evidence for submission to-the jury. The plaintiff was received by the defendant as a passen- • ger on one of its closed cars which was crowded' at the time, and which was coming to Brooklyn, but which was stopped in order to-enable him to get on at the corner of Richard and Myrtle avenues in Glendale. It was so crowded that he could only secure footing upon the step, and he stood there holding on by the car handle with both hands until, while running very fast,, the car, to use his language, “ gave a jump and throwed me off.” On cross-examination he said the car was going “ very fast—just like it always runs there; they run fast out there in the country, and this car was running along just like they all run — just about as fast, and I was hanging on there with my two hands on to this rail. I do not fémember anything about my hat slipping and my making a grab for my hat; I am sure no such thing happened. All at once the car gave a jump and then I fell off. I couldn’t state exactly whether it jumped upwards or jumped ahead, but I know I fell off ; after I fell the car stopped. It was still going as fast as it could. I didn’t say that it jumped, ahead. She didn’t jump sideways; she jumped up and down I suppose; kind of going like this (illustrating); something like a greyhound running.”
There was no evidence to the contrary and the nonsuit is based necessarily upon the theory that the common carrier who invites a passenger for hire to occupy a precarious position upon the' step
In Hassen v. Nassau Electric R. R. Co. (34 App. Div. 71) this court held that a passenger who was permitted to ride upon the running board of a car, and who was thrown off by a sudden jerk, could recover; that it was not negligence per se to ride upon the running board, and that the jerk was sufficient evidence- of negligence under the circumstances. The court said (p. 74): “ The defendant had accepted the plaintiff for carriage, it collected his fare and knew the place he occupied upon the car. It was bound to know that the application of motive power in such manner as to cause the car to give a violent jerk was extremely hazardous, in view of the position of many of the passengers upon the car, and might result in injury. The jury were, therefore, authorized to say that it was a negligent act. (Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13; Schuefer v. Union Ry. Co., 29 id. 261.) ”
In Henderson v. Nassau Electric R. R. Co. (46 App. Div. 280) "this court expressly held that where the defendant accepted passengers standing upon the running board, it was chargeable with notice of the risks incident to their position, and that it was the duty of those occupied with the operation of the carato exercise great care to see that injury is not inflicted upon such passengers. To the same -effect is the earlier decision of this court in Wood v. Brooklyn City R. R. Co. (5 App. Div. 492).
In Lucas v. Metropolitan Street R. Co. (56 App. Div. 405) the Appellate Division in the first department has since gone still farther, and has laid down the salutary doctrine that a street railroad company which permits a passenger upon, one of its cars, who is unable to obtain a seat, to stand upon the front platform and there collects his fare, is obliged to exercise extraordinary care to transport him to his destination without injury.
'See, also, Sheeron v. Coney Island c6 Brooklyn R. R. Co. (78 App. Div. 476), where it was expressly held by this court that under similar conditions in effect to those herein presented the case should be submitted to the jury.
•In Ciarle v. Eighth Avenue Railroad Co. (36 N. Y. 135) the Court ■of Appeals held that while riding on the platform of a street car was prima facie evidence of negligence, the presumption was rebutted on showing the car and platform to be full of passengers, with no room for more; and that the conductor called for and received fares from such passengers. The court further held, as per the head note, that “ Such fact warrants the jury in finding that the plaintiff had been invited by those having charge of the car to ride in that place, and that ,an implied’ assurance had been given that it was a suitable and safe place to ride.” (See, also, Francisco w. Troy c& Lansingburgh R. R. Co., 88 Hun, 464; Miles v. King 18 App. Div. 41; Grotsch v. Steinway Ry. Co., 19 id. 130; Schaefer v. Union Ry. Co., 29 id. 261; Dochtermann v. Brooklyn Heights R. R. Co., 32 id. 13; Eberhardt v. Metropolitan Street R. Co., 69
I am unable to find a case to the contrary. Of those cited on behalf of the respondent it may be said as was said by Judge Cullen in one of them, viz., Dochtermann v. Brooklyn Heights R. R. Co. (supra, at p. 15): “ Most of the cases cited by the respondent’s counsel are plainly distinguishable from the one before us. Hayes v. Forty-second St., etc., R. R. Co. (97 N. Y. 259); Paulson v. Brooklyn City R. R. Co. (13 Misc. Rep. 387), and Bradley v. Second Avenue R. R. Co. (90 Hun, 419), were all cases where the parties voluntarily and without necessity were standing on the platform. How, while it is not negligence per se to stand on the platform of a street car,, it is but fair and reasonable that the person so riding should assume the risk ordinarily incident to such a position from the jolts and jars of the moving car, the unevenness of the track and the turning of curves, and not increase the responsibility or liability of the carrier for his safety.” What was said by the learned jurist of the persons “ so riding ” must be deemed to refer to those alluded to by him in the sentence immediately preceding, viz., those who “ voluntarily and without necessity ” chose to ride upon the platform, for there was no obvious intent to overrule the class of cases from which I have made citation. Those who voluntarily and unnecessarily elect to ride in a dangerous place may very well be held to assume the risk incident to the position ; and its to them there is of course no assurance on the part of the carrier that the place is safe as was said by the Court of Appeals in the Clark Case (supra), and no duty enjoined by law of protecting them by the exercise of extraordinary care as was said by the Appellate Division in the first department in the Lucas Case (supra). But the doctrine of the many cases herein cited has not _yet been authoritatively overthrown to the effect that passengers who are forced or invited by the common carrier to occupy a position upon the platform,, the steps or the running board, may travel
None of the authorities mentioned in the prevailing opinion supports the doctrine that the common carrier of passengers for hire is exempted, from liability merely because the mischief was accomplished by a greyhound-like movement of the car. The plaintiff’s testimony that “ all at once the car gave a jump ” is a distinct assertion that the movement which threw him off was a sudden one, and in that particular different in character from the preceding movement, under which he had managed to maintain his footing. He gave undisputed evidence tending to establish that he was accepted as a passenger in a place where his safety depended upon his being carried at a rate of speed which would enable him to hang on to the means of safety furnished him, and that he was nevertheless carried / along without any relaxation of the usual fast rate until by a jump of the car which came all at once he was torn from his holding and thrown to the ground by reason only of the sudden jump of the car thus occasioned, and both in reason and by authority was. clearly entitled to submit his claim for compensation to the judgment of a jury.
nI, therefore, vote for reversal.
Woodward, J., concurred.
Judgment affirmed, with costs.