Opinion
November, 1905.
Bayard H. Ames, for the appellant.
H. Lionel Kringel, for the respondent.
This is the ordinary negligence action to recover damages for personal injuries. The plaintiff alleged in her complaint that on the 6th of August, 1899, she was a passenger on one of the defendant's south-bound Eighth avenue cars; that just before the car reached Eighty-eighth street she indicated to the conductor her desire to have it stopped there and let her off; that the car was not stopped at that point, but when it reached Eighty-seventh street it was stopped and she attempted to alight; that while she was in the act of doing so, having one foot on the running board and one foot in the street, without warning to her, the car was suddenly started and she was thrown to the street, thus sustaining the injuries of which she complained.
The answer denied the material allegations of the complaint
At the trial, in support of the allegations of the complaint, plaintiff testified that she attempted to get off the car at Eighty-eighth street but the conductor did not stop there, and "took me down to 87th street." She was then asked: "Q. At 87th street, what, if anything, did you do or say before you started to get off? A. The conductor rang the bell twice and then I started. I had one foot on the street and one foot on the step when the conductor rang the bell once and started and threw me out. Before I started to get off this car, the car was standing still." She did not testify that the car was standing still at the time she attempted to step from it. What she stated was that when she had one foot on the street and one foot on the step of the car the bell was rung once, which it is a matter of common knowledge is the signal for the car to stop and two bells for it to start.
She was corroborated in some respects by a colored hallboy — Lightfoot — employed in the Cascade apartment house located on the southwest corner of Eighty-seventh street and Eighth avenue. He testified he was standing in the hall of the apartment and saw the accident; from the place where he stood he could see half way up and down the block; that "the car came down and stopped; the lady was getting off, and as she was getting off, and she had one foot on the ground, the car started and she fell;" that after the plaintiff was injured she was carried into the hall, where he was; that he did not ask for her name, but "she told me her name, and I remember it all this time, certainly. This accident was (in) 1899, five years near."
To meet the testimony of the plaintiff and her one witness, the defendant produced five witnesses — three passengers upon the car, and the other two the conductor and motorman — who contradicted the plaintiff and her witness as to the starting of the car while plaintiff was getting off, four of whom testified that she stepped off before the car had come to a full stop and while it was in motion.
Thus, defendant's witness Mason testified that he was a passenger on the car, and immediately preceding the plaintiff's injury he was sitting two seats in front of her; that she got out of her seat while the car was moving, and that the conductor "called to her to wait until the car stopped;" that the car was then near Eighty-seventh street, running slowly; that she did not wait, but stepped off while the car was moving, with her back towards the front end of it; that the car was running very slowly at the time; that it went but a few feet after she stepped off; that after the accident he voluntarily gave his name to the conductor.
The witness Scommodau, another passenger on the car, testified that he was within five or six feet of the plaintiff when she fell; that when the car was between the north and south crossing of Eighty-seventh street she asked the conductor to stop, and as it approached the south crossing she stepped to the running board and then stepped off before the car had stopped; that the car at the time was running very slowly and stopped after going a few feet, or, to use the language of the witness, "the car stopped within two seats."
The witness Siebert, another passenger, testified that he was sitting in the second seat from the rear of the car; that his attention was attracted to the plaintiff by hearing the conductor tell her to wait until the car had stopped; that he saw her step from the car, and it was then moving very slowly; that after she stepped off she fell, and the car was stopped within five or six feet, and that he voluntarily gave his name to the conductor after the accident.
These three witnesses were apparently all disinterested, and their testimony is corroborated by Gunhouse, the conductor of the car, who, at the time of the trial, was in business for himself and in no way connected with the defendant, and by the motorman, Wesp, who, at the time of the trial, was connected with the fire department of the city of New York, and in no way connected with the defendant.
Taking the testimony altogether, I am of the opinion that the plaintiff did not sustain the burden of establishing by a fair preponderance of evidence that her injuries were produced solely by the negligence of the defendant and that the verdict in her favor is against the weight of evidence. The accident occurred in broad daylight. There is no suggestion made but what the conductor was paying proper attention to his car, or that his attention was distracted in any way, nor did the plaintiff contradict the statement of the defendant's witnesses Mason and Siebert, to the effect that the conductor of the car told her to wait until the car had stopped.
It seems improbable, therefore, under such circumstances, as suggested in Harris v. Second Avenue R.R. Co. ( 48 App. Div. 118), that the conductor would have started his car while the plaintiff, an elderly woman, was getting off, when there was nothing to cause him to thus expose her to danger. This improbability is increased when she did not produce as a witness in her favor a single passenger on the car to corroborate her in any respect and the defendant produced three — two of whom voluntarily gave their names to the conductor — ( Clancy v. Yonkers R.R. Co., 88 App. Div. 612) and all of whom united in saying that she stepped off while the car was in motion.
Then, too, the testimony of the plaintiff's witness Lightfoot is quite improbable in so far as he states the position plaintiff was in when she attempted to alight. He was standing in the hall leading into the apartment, several feet away from where the plaintiff fell. No explanation was given as to how he came to see what he claims to have seen, nor what there was, if anything, to attract his attention to the plaintiff so he could, five years afterwards, describe minutely her position at and immediately prior to the accident.
No one, as it seems to me, can read the entire testimony without being satisfied that the weight of evidence fairly tended to establish that the injury which the plaintiff received was due to her own negligence; that the car had not come to a stop when she attempted to alight, and that her injuries resulted solely from the attempt on her part to get off the car while it was in motion.
The case is brought within the rule laid down in Pierce v. Metropolitan Street R. Co. ( 21 App. Div. 427), cited with approval in Harris v. Second Avenue R.R. Co. ( supra).
It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant abide the event.
O'BRIEN, P.J., PATTERSON and LAUGHLIN, JJ., concurred; INGRAHAM, J., concurred in result.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.