298 N.Y. 76 | NY | 1948
Ernest Noseworthy, plaintiff's intestate, having somehow gotten down from the platform, in one of defendant's subway stations, to the tracks a few feet below, was struck by a subway train. A few hours later, he died from his injuries. There was no testimony as to how he got onto the tracks or as to whether he was conscious or unconscious when struck. His body, when found, was lying between the rails with one leg on the rail farther away from the platform. Defendant's motorman was the only eyewitness. He testified that he saw nothing in the way of the train until the body became visible on the tracks, only ten feet from the oncoming cars, and that he applied his *79
brakes immediately and completed an emergency stop within fifteen feet. Meanwhile, the wheels of the first car had passed over Noseworthy's body. The station was well lighted and the length of the platform was such that the train must have traveled more than 400 feet on the straight, level, stretch of track inside the lighted station, before the accident. All this, we think, made a jury question as to whether or not defendant's motorman was negligent in failing to see decedent until the train was so close that disaster was inevitable (see Clarke v. City of New York,
We refer herein to two only of those rulings, since those two were particularly important in their setting:
1. In that part of his charge to the jury where he briefly summarized the motorman's testimony, the Trial Justice had said: "I do not think there is any need to reject the testimony of anybody in this case. It seems to me that everything everybody said can practically be taken as true." No exception was taken to those remarks but plaintiff's counsel later asked the court to tell the jury that "defendant's witnesses, particularly the police officer, motorman and photographer are interested witnesses." The court declined so to charge, and probably rightly so, since of the witnesses named, only one — the motorman — was "interested" in any sense. But the court then went on to tell the jurors that, under the law, no one is an interested witness unless he has a "financial interest" in the case. That was clearly wrong (Volkmar v. Manhattan Ry. Co.,
The second error on which we comment was the court's refusal to instruct the jurors that: "in a death case such as this, the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident". We think plaintiff was entitled to such an instruction. In the earlier cases, before the burden of proof as to contributory negligence in death cases, was, in 1913, shifted by statute (Decedent Estate Law, § 131) to defendants, the courts announced the rule that since the one accused of contributory negligence was not alive to speak for himself, only slight proof of his freedom from guilt would be required (see Schafer v. Mayor,
There were other incidents and rulings at this trial of which plaintiff rightfully complains. But the two rulings above described were, we think, not only plainly wrong, but seriously prejudicial in a case like this. They deprived plaintiff of her right to have her cause go to the jury on an accurate statement of the simple rules applicable thereto.
The judgments should be reversed and a new trial granted, with costs in all courts to abide the event.
LOUGHRAN, Ch. J., LEWIS, THACHER, DYE and FULD, JJ, concur; CONWAY, J., taking no part.
Judgments reversed, etc.