Citations
- 63 A.D. 332
Full opinion text
Woodward, J. :
The plaintiff, in company with her husband, was a passenger upon one of the cars of the defendant, traversing Fifty-ninth street in the city of New York,'in a westerly direction, on the 30th day of January, 1900. It was customary for the cars upon this line to stop at or near the Columbia monument on. Fifty-ninth street, near Eighth avenue, to transfer passengers to the Lenox avenue and other cars. The hour of the accident was about ten o’clock in the evening, and it appears from the evidence that the circle around the monument is paved with asphalt and is very smooth; that the circle is lighted with gas, and that there was no station or other visible object to indicate the exact stopping place' of the ears. The plaintiff was born in 1837, making her well advanced in years, and' her version of the accident, corroborated in the' main by that of her husband, is that on approaching this transfer point the car came to a standstill; that two or three, possibly more, passengers had left the car in advance and that she followed the crowd; that as she stepped down on the step of tEe rear platform, and started to put her foot upon the pavement, the car “ started off quick ” and she was thrown to the pavement, sustaining the injuries set forth in the complaint and which are not denied by the defendant. The theory of the defense is that the car was still in motion when the plaintiff stepped off; that she was warned by the conductor not to get off until the car stopped, but that in disregard of this caution she persisted in getting off, with the result as stated. These two theories were supported by evidence, and the learned court below submitted the question to the jury after denying the usual motions to dismiss the complaint, the defendant excepting to the denials, resulting in a verdict for the plaintiff. From the judgment entered Upon this verdict, and from an order denying a motion for a new trial, defendant appeals.
Three points are urged upon this appeal, the first being that the overwhelming weight of evidence shows that the plaintiff attempted to alight from a moving car, and in so doing sustained the injuries complained of.. We are of opinion that there is not such a preponderance of evidence in support of this proposition that the jury could not properly find in favor of the plaintiff. Both she and her husband positively testify that the car had come to a standstill, and if it had, it is difficult to understand why the jury might not find that it was negligent on the part of the persons in charge of the car to start it while she was in the act of getting off the car, or that she was not chargeable with contributory negligence in leaving the ear in the manner described to the jury by the witnesses. That the car was moving at the moment the plaintiff fell there can be no question, and if it had been previously stopped, the conductor calling, u Transfer for Eighth Avenue,” thus indicating that it was proper for the passengers to alight, a question wras presented for the jury whether the defendant had discharged its duty to the plaintiff, and whether she had exercised that degree of care demanded by the circumstances. It is true that the conductor swears that he warned the plaintiff, and there was some evidence that the plaintiff stated at the time that the conductor was not to blame, and that her husband had made remarks of' similar import, but all of these matter’s were denied or explained, and it was for the jury to say which of- the two theories they would accept, each of them being supported by evidence.
Under point 2 the defendant urges that it was error for the trial court to charge the jury that if the conductor called out