Opinion
Nos. 254, 255.
April 1, 1929.
Appeals from the District Court of the United States for the Southern District of New York.
Actions by Sarah Mareiniss against Hugh J. Sheeran, as receiver of the New York Railways Company, and by Philip Mareiniss against the same defendant. The first action was brought to recover damages for personal injuries, and the second was brought by the husband of the plaintiff in the first to recover for loss of services and medical and other expenses incidental to main claim. Judgment for defendant in each case, and plaintiffs appeal. Reversed.
The plaintiff, Sarah Mareiniss, on the 4th day of November, 1924, at about 3 p.m., boarded an open car, operated by the defendant, at the southeast corner of Fourteenth street and Broadway, New York City. She was going uptown and was obliged to stand in the aisle, because the car was crowded. She took a place nearest the running board, there being three other people in the aisle on her left, and held on to the back of the seat immediately in front of her in order to steady herself. She testified that when the car started to go around the corner, near Sixteenth street, it went very fast and gave a shake. The three people at her left fell and came against her (folios 104, 105). She was thrown out and injured, in spite of her attempt to hold on. There was evidence that she received a scalp wound, which necessitated stitches, was taken to a hospital, where she remained eight days, and was in bed at her own home for three months thereafter. Two passengers confirmed her story as to the speed of the car when rounding the curve, and one of them mentioned that it lurched (folio 199).
Defendant's motorman said that the power was shut off and the car was proceeding moderately as it rounded the curve, and that while there was an inevitable jolt it was no more than usual. The conductor said that he called out "Hold fast!" as the car took the curve, and confirmed the motorman as to the speed. Both of these witnesses admitted that the woman fell out as the car was rounding the curve. A third witness for the defendant testified that the car was not going fast.
Judgment was granted to the defendant, because there was no proof of negligence.
Harry S. Austin, of New York City (George F. Hickey, of New York City, of counsel), for appellants.
Henry J. Smith, of New York City (Ambrose Clogher, of New York City, of counsel), for appellee.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
It is common knowledge that some jolting is usual when a trolley car rounds a curve. Passengers who board a crowded open car are bound to take notice of this fact and guard against being thrown down or off the car. Ward v. International R. Co., 206 N.Y. 83, 99 N.E. 262, Ann. Cas. 1914A, 1170. The railroad, on the other hand, is under an obligation to exercise care commensurate with the circumstances. It must proceed without unnecessary speed or jolting, and do whatever is reasonably practicable to prevent passengers from losing their balance and coming to injury. Gatens v. Metropolitan St. R. Co., 89 App. Div. 311, 85 N.Y.S. 967 (affirmed 181 N.Y. 515, 73 N.E. 1124); Lucas v. Metropolitan St. Ry. Co., 56 App. Div. 405, 67 N.Y.S. 833; Schaefer v. Union Ry. Co., 29 App. Div. 261, 262, 51 N.Y.S. 431; Dillon v. Forty-Second St. M. St. N. Ave. Ry. Co., 28 App. Div. 404, 51 N.Y.S. 145.
"The exposure of a passenger to a danger which the exercise of reasonable foresight would have anticipated and due care avoided, is negligence on a part of a carrier." Lehr v. Steinway H.P.R. Co., 118 N.Y. 556, at page 561, 23 N.E. 889, 890.
The plaintiff's testimony, not only was to the effect that the car was going very fast, but that the speed and lurch were sufficient to throw three other passengers against her with such force that she was pushed from the car in spite of the fact that she was holding on to the front seat. Whether, upon the conflicting evidence, the speed was incompatible with the exercise of proper care for the safety of passengers, was a question for the jury, and the trial judge should not on the record have dismissed the complaint of Sarah Mareiniss.
In the second action by the husband, it it objected that there is no proof that Philip Mareiniss was the husband of the plaintiff in the first case. But there was testimony that she had a husband in the clothing business. The motion to dismiss was made only on the ground that the plaintiff had not proved a cause of action in accordance with the complaint. It was really directed to the question of the defendant's negligence, as all the discussion in the record shows. In view of the testimony that the plaintiff had a husband, we assume from the name "Mareiniss," in which the second action is brought, that the husband is the plaintiff in the second action. On this assumption, there was at least proof of loss of consortium which presented a case for the jury.
Judgment reversed in each action.