72 N.Y.S. 835 | N.Y. App. Div. | 1901
The complaint was dismissed upon the opening and the propriety of the dismissal is before us for review. The complaint alleges that on the 5th of July, 1898, the plaintiff was a passenger on one of the defendant’s open cars on Broadway going uptown; that near the intersection of Forty-second street and Broadway the plaintiff saw said ear slowing up as if about to stop, and got up from his seat; and while the car was slowly crossing Forty-second street as if to stop, stepped down on the step of the car holding on to the brass handbar ; that he saw the conductor on the step at the front of the car collecting fares with his back to the plaintiff; that as the car did not stop entirely, the plaintiff whistled to the conductor, who turned his head towards the plaintiff but did not stop the car, and the car suddenly jerked forward through the negligence and carelessness of the conductor and gripman, and the plaintiff was thrown off
When the case came on for trial, the plaintiff’s counsel, in opening the case to the jury, stated that he could prove, to sustain the allegations of the complaint, that these Broadway cars usually stop at the north corner of Forty-second street for the purpose of letting passengers off to take the Forty-second street cars; that as the car neared Forty-second street it slowed up, so that the plaintiff supposed it was going to stop on the north side of the street; that the plaintiff got up as the car began to slow up crossing the street, and got down upon the step, holding on to the left-hand bar with his left hand, looking forward, with his bag of medical instruments in his right hand; that the conductor at that time was at the front part of the car, collecting fa-res from the passengers, with his back to the plaintiff; that as the car did not stop entirely, the plaintiff whistled to the conductor, who turned his head towards him, and just at that time the car gave a sudden jerk forward and threw the plaintiff off. At the conclusion of the opening, counsel for the defendant moved to dismiss the complaint upon the ground that the opening did not show any negligence on the part of the conductor in charge of the car, and that the negligence of the plaintiff contributed to the injury. The court asked counsel for the plaintiff several questions, in answer to which he stated that the plaintiff was thrown off when the car had reached the crosswalk; that simultaneously with the plaintiff’s whistling to the conductor the car was jerked forward, and when asked as to what particular negligence caused the accident the counsel stated that it was the negligence of the conductor, “ in that instead of looking around to see that his passengers were all off or not getting off before he let the car go on.” The court then said : “ Tou do not claim that the driver was negligent because he had no notice that the man wanted to get off ? ” to which counsel replied, "“No, it was not his business.” The Court: “Then the driver was
I cannot see that the action of the conductor could have in any way contributed to the accident. The plaintiff assumed that the car was about to stop, and that notice to the conductor to stop the car was not necessary to enable him to alight in safety; and he assumed that, because the car usually stopped at Broadway and Forty-second street to let the passengers off, and that the car apparently slowed up in crossing the street. But it is not alleged that these cars are in the habit of stopping upon this crossing, except where passengers have indicated their intention of alighting. I think that before an agent of the defendant can be said to be negligent in not stopping a car at a crossing, the passenger must in some way indicate to the agent that he wishes to stop. It was the duty of the conductor to collect the fares. There is no rule which requires the conductor to be in any particular part of the car, and there was no evidence or statement that he was not at this time attending to his duty. The only charge that the plaintiff makes against him is that he was collecting fares and had his head turned away from the plaintiff when the plaintiff stepped down on the step ; but I cannot see that this action of the conductor would justify an inference of negligence, he being at the time, so far as appears, engaged in the performance of his duty collecting fares, and he could not at the same time collect fares and watch the plaintiff and the other passengers of the car. It was the plaintiff’s duty if he wished to alight to indicate that wish either to the conductor or to the gripman. In the absence of such indication it cannot be said that the conductor was negligent because for a moment he looked away from where the plaintiff was sitting in order to perform his duty of collecting fares.
Nor do I think that the statement would justify an inference that the gripman was negligent in starting the car. The speed of the car was lessened as it approached the street, so that-it could be stopped if any passenger wished to alight. No passenger giving an indication either to the conductor or the gripman that he wished the car to stop until it was on the north crosswalk, the gripman was justified in starting the car ahead to continue its trip. So far as appears this was all that he did. The starting of the car is charae
Upon the whole case, I think that neither the facts, as alleged in the complaint, nor the statement of the existing conditions at the time of the accident upon the plaintiff’s opening, would have justified the jury in finding the defendant guilty of negligence, and from this it follows that the court correctly dismissed the complaint.
The judgment appealed from should be affirmed, with costs.
"Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Hatch, J., dissented.
Judgment affirmed, with costs.