Frobisher v. . Fifth Avenue Transportation Co.

Haight, J. This action was brought to recover damages for a personal injury. On the 14th day of October, 1889, the plaintiff was standing upon the west side of Fifth avenue, in the city of Ffew York, just south of Twenty-third street; he signaled the driver of a Fifth avenue omnibus to stop, and the driver there *433 upon ¡Hilled up his horses and nearly stopped the ’bus. Whilst it was moving slowly the plaintiff stepped aboard, taking hold of the handle at the side of the door. Whilst standing upon the step, and before entering the ’bus, the driver started ahead, and the plaintiff’s body was jerked backward. At that instant his foot slipped from the step under the body of the ’bus, his hold upon the handle loosened, and he fell backwards, striking upon the pavement, causing the injuries for which this action was brought. It was, among other things, charged in the complaint that the stage, or omnibus, ivas negligently constructed and unfit for carrying passengers, and that such negligence caused his fall. At the conclusion of the trial the defendant requested the court to charge: “ That there is no proof that the step of the stage, or the stage itself, ivas in any way defective.” To this the court replied: “ You have the evidence in regard to what might have been done with .known appliances with respect to the step.” To this the defendant entered an exception. It. was not claimed that the stage, or omnibus, ivas in any way defective other than in the construction of the step by which it was entered. There was but one step, twenty-two inches long and about sixteen inches wide; it was held in position by two large braces, one on each end, and there was a corded rubber covering the step. The back of the step was open and not closed. The charge of negligence is based upon this opening. One of the witnesses testified that the open step was used for large cities, and another that he had never seen a stage with a solid back to its step, except the hotel coaches. It is quite apparent from the testimony given that both kinds of steps are in general use,-and that each may have its advantage and disadvantage. With the solid back step there would be no danger of the foot slipping through and catching under the ’bus, but it would be more liable to fill with mud and snow in traveling over the streets, and thus cause the foot to slip forward. It did not appear that any accident of the character of this had before occurred by reason of the úse of the open-back step. We think, tliere *434 fore, that the defendant was not chargeable with negligence by reason of its use of the open step, and that its use did not render the omnibus defective. (Crocheron v. N. S. S. I. F. Co., 56 N. Y. 656; Loftus v. U. F. Co. of B., 84 N. Y. 455 ; Lafflin v. B. & S. W. R. R. Co., 106 N. Y. 136.) An exception was taken by the defendant to the introduction of evidence as to the plaintiff’s income from his business before and after the injury. The objection to this evidence, however, was made upon the ground that special damages were not pleaded in the complaint. It was not objected to upon the ground that damages of this character were not competent, or that they were remote or speculative. The complaint did allege interference with his prosecution of his business, from which he suffered damages. The allegation is quite general to become the foundation for the awarding of special damages, but the defendant could have had it made more specific upon motion had it so desired. The objection having been confined to the pleading, we think the question as to whether damages of that character could, in any event, be awarded, is not now raised for our consideration. But, upon the exception taken to the refusal of the court to charge as requested, the judgment should be reversed and a new trial granted, with costs to abide the event. All concur, except Bartlett, J., not voting. Judgment reversed.