Opinion
June 29, 1908.
Anthony J. Ernest, for the appellants.
William E. Cook, for the respondent.
There is no material conflict in the evidence in this case. The plaintiff, on the 26th day of October, 1907, attempted to board one of the defendant's cars, by the front door, at the corner of Delancey and Clinton streets, borough of Manhattan. The motorman had opened the folding gate on the front platform for passengers to enter, and several passengers preceded the plaintiff upon the car. While she was in the act of stepping upon the platform, plaintiff took hold of the folding gate, and just at that moment the motorman closed the gate, catching her thumb and producing the injury for which she has recovered a judgment for $222. The defendants appeal from the judgment, and on the authority of O'Rourke v. Interborough Rapid Transit Co. ( 46 Misc. Rep. 453) urge that this was an unavoidable accident for which the defendants are not liable. We are of the opinion that the case relied upon is not an authority for reversal; that the defendants' motorman in this case, having opened the gate to admit passengers, was not justified in closing it until the plaintiff had had a fair opportunity to get into a position of safety. While it is probably true that the car was equipped with hand rails, and it was not necessary for the plaintiff to take hold of the folding gate, still it can hardly be said as a matter of law that she was guilty of negligence contributing to the accident by taking hold of this gate; it presented a convenient place for taking hold, and it was entirely safe so long as the motorman did not close it. It was not, therefore, a proximate cause of the accident; the accident resulted solely through the affirmative act of the motorman in closing the gate while the plaintiff was attempting to get on board, where the gate had been opened for this purpose, and it was the duty of the motorman to give her an opportunity to get on board safely. The exercise of any reasonable degree of care on the part of the motorman would have obviated the accident, and the trial court very properly found for the plaintiff.
The judgment appealed from should be affirmed, with costs.
JENKS, HOOKER, GAYNOR and RICH, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.