Summary
In Waddy v. Brooklyn Hgts. R.R. Co. (156 App. Div. 30, supra), the court again set aside a verdict for the plaintiff after trial, and ordered a new trial.
Summary of this case from Harris v. Manhattan SurfaceOpinion
March 14, 1913.
D.A. Marsh [ George D. Yeomans with him on the brief], for the appellant.
Sterling Pierson, for the respondent.
The plaintiff states his belief that there was a car ahead of the one in which he was riding when he went on the front platform. The evidence is that such was not the case. As a person experienced by long use of cars entering upon the loop and stopping, he knew that the car was passing around the loop to reach its stopping place, but that it had not come to such a point, and he also knew that the conductor's call "All off" meant that he should alight when the car stopped. Experience also should have taught him that a car passing around such a loop often decreases and accelerates its speed with resultant disturbance to the equilibrium of standing passengers, and he should have taken some precaution to maintain himself on the platform. There is no evidence whatever that he did use such care, and although he was thrown off, it does not appear that there was any violent starting up of the car that produced it. Hence the negligence of the defendant is not proven, nor is the plaintiff shown to have been free from contributory negligence. ( Ayers v. Rochester R. Co., 156 N.Y. 104; Dwyer v. Auburn Syracuse Electric R.R. Co., 131 App. Div. 477; Black v. Third Avenue R.R. Co., 2 id. 387.)
The judgment and order should be reversed and a new trial granted, costs to abide the event.
JENKS, P.J., HIRSCHBERG, THOMAS, CARR and RICH, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.