111 N.Y.S. 379 | N.Y. App. Div. | 1908
The plaintiff has recovered a judgment of $5,646.20 against the defendant in an action for damages for personal injuries alleged to have been sustained through the negligence of the defendant, with
On the 10th day of March, 1905, at about twenty minutes past seven o’clock in the morning the plaintiff entered upon the platform, of the defendant’s station at One Hundred and Tenth street, intending to take a train for the Grand Central Station. The plaintiff had been in the habit of using the Subway in going to his work downtown, but owing to a strike among the employees of that line he made use of the defendant’s lines, the.first occasion being the morning prior to the accident complained of in this action. The station platform at One Hundred and Tenth street is 262 feet long and something over 9 feet wide, the four tracks of the defendant being upon a viaduct at this point. The outside tracks are used for local traffic and the two inside tracks for through trains. Track No. 1, which passes immediately alongside of tile platform, is used for the south-bound local traffic, and on the morning of the accident there were from 150 to 200 people,upon this platform waiting for transportation. One train came along and passed over this south-bound local track without stopping, so it must have been apparent that all trains using this local track did not stop for passengers. Shortly afterward a second train came along, reducing its speed as it approached-the station, and the crowd pushed forward to get aboard. This train did not stop, though it appears from the evidence that it was-reduced in speed until it was going only from two to four miles an hour. The cars were all full, and the platforms of the eight cars comprising the train were all more or less filled with passengers, and it appears that several men and women took advantage of the slow movements of the train to get on board. The plaintiff at this time was at or near the southern end of the platform. He had seen one train go by, and he stood there at the southern end of the platform until an engine, tender and seven cars had passed the point where he was standing, and then, fearing that he would have no' other chance to get on board, he stepped upon the lower step of the platform of the last car, with both hands holding to the guardrails of the car, and while in this position his witnesses testify that the train gave a sudden jerlc and he felt his hold give way, and the next he knew he was falling into darkness. He was so seriously injured that both legs had to be amputated, one at the thigh, the other just
This is,, perhaps, but another way of ■ saying that the plaintiff was, as matter of law, guilty of negligence'contributing to the accident. , He voluntarily placed himself in a situation where the ordinary and incidental acts of the engineer in operating the train produced the' injury, and. lie. is hardly in a. position to complain of the result. While- there was for a time an apparent conflict of - authority in the Court of Appeals as to the - status of one who got on or off of a ■ moving'train, the law appears to have been brought back to a liar.monious foundation in the recent case of Mearns v. Central R. R. Co. of N. J. (163 N. Y. 108, 111) where the case of Solomon v. Manhattan R. Co. (103 id. 437) is recognized as laying down the correct rule. In that case it was said that it is “ the general rule of , law established by the decisions in this and other States' * * * that the boarding or alighting' from a' moving train is presumably and generally a negligent act per se, and that in order to r.ebut this presumption and justify a recovery for an injury sustained in get
The suggestion that he had already reached a place of safety and was entitled to the degree of care of other passengers is hardly supported by the evidence; the most that can be spelled out of the evidence is that the act of the plaintiff in stepping upon the lower step of the car, with both hands holding upon the railings, occurred simultaneously with the jerking of the car. He had not reached a place of safety; he was merely in the act, and before he had reached a place of safety or had placed himself where the defendant . owed him any special duty, he was forced to loosen his hold by the jerking of the cars, and the result followed-. It is unfortunate for the plaintiff, but the law is clear upon this subject and the judgment and order appealed from, must be reversed.
Rookeb, Gtaynoe, Rich and Milleb, JJ., concurred.
Judgment and order reversed and new trial 'granted, costs to abide the event. ' '