Wilson v. International Railway Co.

205 A.D. 275 | N.Y. App. Div. | 1923

Per Curiam:

The car upon which the plaintiff was a passenger stopped upon a curve. After the plaintiff had reached the ground he was hit by the rear end of the car which swung out as it passed over the curve. When the plaintiff attempted to alight from the car it was his duty to exercise reasonable care in so doing. It was the duty of the employees of the defendant to exercise reasonable care and diligence under the circumstances so that the plaintiff should have a reasonable opportunity to get into a place of safety before the car started. The evidence upon each question presented a close issue of fact. The learned trial court charged: “ Necessarily, therefore, the law imposes on a passenger getting off at a point like that, knowing that the car is to go around the curve, when it starts to go around the curve it is his duty to be alert and get away from the moving part of the car, for the reason that it does project out. It is not proper that he should stay in the line of the overhang, of the extra overhang of that car an instant longer than is necessary to get down on the street and get away. That is one proposition. Of course he has a right to have ample time to get off the car while it is standing, but once he is down upon the ground that car has the right to start and he must move out of the way of it.”

The attention of the court was called to the portion of the charge here quoted by exceptions and requests to charge. The charge was clearly erroneous, and practically took away from the jury the question of reasonable care under the circumstances.

All concur; Davis, J., not sitting.

Judgment and order reversed upon questions of law, and new trial granted, with costs to the appellant to abide the event.