Opinion
December, 1903.
Albert E. Lamb, for the appellant.
Thomas F. Magner, for the respondent.
Present — BARTLETT, WOODWARD, HIRSCHBERG, JENKS and HOOKER, JJ.
The judgment recovered is for damages for the alleged negligent killing of the plaintiff's intestate. He was a passenger on the running board of one of the defendant's open trolley cars, and was thrown or fell under the wheels of the car on Smith street, in the borough of Brooklyn, while the car was crossing Schermerhorn street. The issue tried before the jury was whether a violent jerk and accompanying accelerated speed of the car threw him off as he was standing upon the running board and holding on by the stanchions with both hands, as contended by the plaintiff, or whether, as contended by the defendant, he was seated in the body of the car, but under the influence of liquor, and voluntarily got up and either jumped off the car or fell or was pushed off.
On the first trial of the case the complaint was dismissed when plaintiff rested, and exceptions were ordered to be heard at the Appellate Division in the first instance. The case as then presented was the same as that established by the plaintiff's evidence on this second trial, and indicated that the decedent boarded an overcrowded car and rode on the running board with his back to the body of the car, holding by the stanchions on either side. While crossing Schermerhorn street the car gave a sudden and violent jerk, which threw him off. We held that the evidence required a submission of the case to the jury. (See Sheeron v. Coney Island Brooklyn R.R. Co., 78 App. Div. 476.) In the opinion then written by Presiding Justice GOODRICH the cases of Hassen v. Nassau Electric R.R. Co. ( 34 App. Div. 71) and Brainard v. Nassau Electric R.R. Co. (44 id. 613) were cited as authority for such submission. Referring to the fact that there was evidence tending to show that the jerk was sufficient to throw standing passengers off their footing and against the seats, and that the fall of the deceased from the car was coincident with the jerk and with the accelerated speed of the car then noticed, the court held that such evidence within the principle of the authorities cited required that the question of the negligence of the respective parties should be determined by the jury. The decision was in accordance with a long line of authorities which holds that where a common carrier accepts passengers upon the platforms or the running boards of overcrowded cars, there is an implied assurance that such places are reasonably safe, and a corresponding duty to so operate the cars as to maintain such a condition of safety. (See McGrath v. Brooklyn, Queens Co. R.R. Co., 87 Hun, 310; Francisco v. Troy Lansingburgh R.R. Co., 88 id. 464, 466; Wood v. Brooklyn City R.R. Co., 5 App. Div. 492; Miles v. King, 18 id. 41; Grotsch v. Steinway R. Co., 19 id. 130; Schaefer v. Union Ry. Co., 29 id. 261; Dochtermann v. Brooklyn Heights R.R. Co., 32 id. 13; Henderson v. Nassau Electric R.R. Co., 46 id. 280; Lucas v. Metropolitan Street R. Co., 56 id. 405; Eberhardt v. Metropolitan Street R. Co., 69 id. 560; Clark v. Eighth Avenue R.R. Co., 36 N.Y. 135; Sauter v. N.Y.C. H.R.R.R. Co., 66 id. 50; Ginna v. Second Avenue R.R. Co., 67 id. 596; Nolan v. Brooklyn City Newtown R.R. Co., 87 id. 63; Bartholomew v. N.Y.C. H.R.R.R. Co., 102 id. 716; Graham v. Manhattan R. Co., 149 id. 336.)
The main contention of the learned counsel for the appellant on this appeal is that the verdict is against the weight of the evidence. To analyze the evidence would serve no necessary purpose. It embraces a sharply contested issue which was peculiarly within the province of a jury to determine. While more witnesses were examined by the defendant than by the plaintiff, they are not in entire accord and harmony, and the conclusion reached by the jury seems abundantly supported both by express testimony and by surrounding circumstances. No exception is raised to any of the rulings of the learned trial court, and no valid ground appears for interference with the result.
The judgment and order should be affirmed.
Judgment and order unanimously affirmed, with costs.