De Rozas v. Metropolitan Street Railway Co.

Rumsey, J.: The action was brought to recover damages for personal injuries suffered by the plaintiff upon endeavoring to hoard one of • the defendant’s horse cars. The. plaintiff was nonsuited upon the trial, and afterwards, upon a motion for a new trial upon the judge’s [297] minutes, the order for a nonsuit was set aside and a new trial was granted, and from the order granting a new trial this appeal is taken. The sole question presentéd is whether, there was sufficient evidence to have warranted the jury, had the case been submitted to them, in finding for the plaintiff. The testimony upon' that subject is in a small compass. All of it was given on the part of the plaintiff, and no witnesses for the defendant were sworn. The plaintiff’s testimony was that she was, with her daughter, on Twenty-third street, waiting to board the defendant’s car; that the car stopped upon the daughter’s signal; that the driver motioned hurriedly and said, “ quick, quick,” or, “ hurry up, hurry up, this way, this way, hurry up.” She thereupon entered the car. They hurried and got in as quickly as they could. The daughter entered first by way of the front platform, and went right along it through the front door. The plaintiff then stated, “ I followed her; I hurried and I got on the second step; before I got in the car he started up ; the driver started. Q. You mean by the second step the platform of the car? A. Yes. Q. How was it started? . A. Very suddenly.” It appeared, from the testimony of the daughter, that they were directed by the driver upon the front platform, and, being recalled, the plaintiff further said that the car started suddenly, before she got in, before she had time to turn. She said, further, “There was a driver bn the car. He had the reins in his hands; as I got in he started the car; as I stepped on the step he started the car, and didn’t give me a chance to get in the car, because I fell.” The daughter stated substantially the same facts with regard to the stopping of the car. She further said that she preceded her mother upon the car, and. she had just got inside the door when the car started, and she heard her mother scream. She further stated, “ When my mother came into the car she was crying.” It appeared that, as the result of .the sudden start of the car, the plaintiff was thrown against the side of the car, striking her arm against one of the brass handles of the door, and was quite seriously hurt. Upon this evidence we are quite clear that the Case should have been submitted to the jury, and that the granting of a new trial was proper. [298] ■ There was. nothing in the-evidence from which it could have been said that the plaintiff was guilty of contributory negligence. The attempt to mount the front platform when the car was standing still was certainly not negligence as a matter of law, nor do we ■think it could have been said to be negligence at all, in view of the fact that she was invited by the driver to enter the car in that way. There can be no doubt that when a passenger attempts to go aboard a car which is at rest, whether a steam or horse car, it is the duty of those managing the car to give him a reasonable opportunity to' get aboard, and to assure himself of his footing, before starting the car (Keating v. N. Y. C. & H. R. R. R. Co., 49 N. Y. 673; Morison v. Broadway & Second Ave. R. R. Co., 8 N. Y. Supp. 436; Ganiard v. Rochester City, etc., R. R. Co., 50 Hun, 22), and whether, under such circumstances as these, the car was prematurely started before the plaintiff had an opportunity to get aboard and reach a place of safety, was in this case a question which should have been submitted to the jury. The case of Black v. Third Ave. R. R. Co. (2 App. Div. 387) is not in point. In that case the complaint was, not that the car was prematurely started, but that it was -started with an unnecessary and violent jerk, by -which the plaintiff, who had succeeded in entering the car, and was standing up inside of it, was thrown down and injured. The whole point of the decision, is that there was an entire failure to prove that the manner of starting the car was unusual, or other than necessarily accompanies. the starting of a. cable car. In that respect the case differs widely from the case át bar. The order granting a new trial must be affirmed, with costs to the respondent to abide the event. Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred. Order affirmed, with costs to respondent to abide event.