McCann v. . Sixth Ave. R.R. Co.

*510 Danforth, J. This appeal must prevail. There was, in the first instance, on the part of the plaintiff, evidence of a conclusive nature, and which, if credible, would amount to proof of the negligence alleged in the complaint as ground of defendant’s liability. The place of injury was a public street and the defendant’s car was running up town at an unlawful speed. The way was thus made dangerous to a wayfarer, the horses themselves rendered less manageable and the car more difficult to stop. There was also evidence of the same nature, derived from positive testimony and circumstances attending the transaction, from which it might be inferred that the plaintiff failed in no degree to exercise ordinary care. He was technically a trespasser upon another car of the defendant, a down town car, but then standing at the crossing, for he went upon it not intending to be a passenger, but to cross its platform in order to escape a truck which seemed coming down upon him.. At that instant the conductor of the down town car stepped towards him in a threatening manner and kicked at him, and the boy, to avoid the kick, jumped from the platform. He did not see the car coming up; nor did he look for it; he alighted in the middle of its track and was run over. Except for this act of the conductor, the haste of the boy would seem heedlessness and his omission to look for an approaching car afford such evidence of carelessness as would be quite persuasive. But his conduct is to be weighed with that of the conductor; and for the act of the conductor the defendant is responsible. (Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605 ; 113 N. Y. 670.) Whether the boy was in fact influenced by the threatened assault and how far obedience to the instinct of self-preservation from a visible danger should excuse his failure to look for another not then before him, were questions for the jury. The defendant could not escape the consequences of its own negligence by pointing to an act of the boy contributing to the accident, if his conduct was induced by the defendant, nor could the latter have the benefit of the boy’s misjudgment or want of judgment, if the act of its agent threw him off his *511 balance. The act of the conductor was not only a rude command to leave the car, but, as the result shows, was ill-timed. This seems to have been the view of the learned trial judge, for at the end of the plaintiffs case he denied the defendant’s motion for a nonsuit, and it went into evidence. At the conclusion of testimony from both parties, however, on motion of defendant’s counsel, he directed a verdict for defendant. In this there was error. ■ The defendant’s evidence was of no higher degree than that of the plaintiff, and at most conflicted with it. Both depended upon the recollection and veracity of actors and eye-witnesses, and whatever might have been the opinion of the court as to its relative value, it was the right of the plaintiff to have the whole submitted to the consideration of the jury. As that right was denied, the judgment should be reversed and a new trial granted with costs to abide the event. All concur, except Earl and Finch, JJ., dissenting, Gray, J., concurring in result. Judgment reversed.