95 N.Y.S. 498 | N.Y. App. Div. | 1905
The plaintiff was a passenger on defendant’s car operated on a street crossing the Champlain canal.. By reason of repairs in progress by the State to the canal bridge, defendant for some time had been compelled to stop its cars without crossing, and thus make the street adjacent to the canal the terminus of its route. Passengers would alight and proceed across the canal by a footbridge connecting with the left sidewalk as the car approached the canal. The plaintiff was familiar with this-condition of affairs, and on the night of the accident, upon the stopping of the car, she alighted from its right-hand side, other passengers preceding her, and passed along the car -to its front, turned sharply to cross to the left sidewalk, caught her foot in the fender of the car and was thrown and received the injuries for which she complains. The fender was of ordinary dimensions and .projected about four and a half feet beyond the front of the car, and the defendant was compelled to run with it down. There was a clear roadway between the front of the car and the debris, incident to the bridge repairing, of twenty feet.
Plaintiff testifies that she was the last of a number of passengers to leave the car, and she puts the length of time elapsing from the stopping of the car to the time she fell from one to two minutes. She testifies that she proceeded at once to alight when the car stopped, and without interruption passed along the side of the car to the front, and it is manifest that the time between the stopping of the car and the accident was very short.
The street was on a down grade as it approached the canal, and the motorman testified that it was his duty to stand by his brakes until the conductor came to the front end of the car, when it was his duty to alight, lift the fender and strap it to the dashboard.
There was proof in the case that motormen on defendant’s road had been seen to lift the fender with a hook while standing on the platform.-
- There was some conflict' of testimony as to the light proceeding from the car, but the ordinary street lights were burning and the locality was not absolutely dark.
The court charged the jury, correctly as' we think, that at the time of the accident the defendant’s duty to the plaintiff, as a passenger, had ceased. ' The only ground of negligence, therefore, was
A street railway company has the right, without being charged with a breach of duty or an unlawful obstruction of the highway, to allow its cars to stand upon its tracks for a reasonable length of time. (Adams v. Metropolitan Street Railway Co., 82 App. Div. 354.) In the case cited the fender was down and the car was unlighted and unattended, which presented a stronger state, of facts than those of the case at bar, and yet the defendant was held blameless, because the car had not remained in such condition for an unreasonable length of time.
It does not help the situation by saying^ that the motorman could have immediately lifted the fender with a hook when the car came to a stop. The car was on a down grade. Inattention to his brakes, necessary to the lifting and strapping of the fender, might have been much more dangerous to passengers and wayfarers. It was not an unreasonable rule which required the motorman to stand at his post until .the conductor had finished his duties of seeing to the alighting of passengers and had come to the front of the car.
No situation of unusual danger to alighting passengers is presented which the defendant was called upon to guard against or to give warning concerning. There was a clear public street over which the plaintiff could cross to the sidewalk leading to the footbridge. She turned too closely in front of the car, and, unfortunately, stumbled upon the fender; but the accident was caused by no negligence of the defendant.
The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Smith, J., dissenting.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.