Dochtermann v. Brooklyn Heights Railroad

Cullen, J.: This action is brought to recover damages for personal injuries received by the plaintiff while a passenger upon the defendant’s trolley car. The plaintiff’s story is that she signaled the car, which stopped; that the motorman beckoned to her to enter it by the front platform, opening the gate for the purpose of giving her entrance; that she got upon the platform, and that just as she was stepping in, or had stepped into the body of the car, and before she was able to sit down, the car started with a violent jerk, by which she was thrown down and received injuries for which she brings this suit. The plaintiff testified that the car started with great force. A lady, a passenger in the car at the time, and seated, characterized the start as “ such a jerk it almost threw us off our feet, too.” Another witness described it as “ a jerk that sent us sideways.” It was not disputed that the plaintiff was either thrown down or fell down as stated. Expert testimony was given on the part of the plaintiff to show the proper manner of starting a trolley car, and that it could [14] be started without a violent jerk. On the part of the defendant, it was testified by the motorman and conductor that the car was started properly, without any unusual or sudden jerk. Expert evidence was also given that it was impossible to start the car without a marked jar. The cause was submitted to the jury under an entirely fair charge, to which no exception of merit was taken by the defendant ; nor are there any exceptions as to the rulings on evidence which require discussion. The jury rendered a verdict for the plaintiff. Thereafter the defendant’s motion for a new trial was granted and the verdict set aside, and from the order granting a new frial this appeal is taken. There is but one question presented on this appeal, whether the evidence of the defendant’s negligence was sufficient to justify the submission of the cause to the jury, or whether its motion made at the trial to dismiss the complaint should have -been granted.' The burden of the argument of respondent’s counsel is that a jar or jerk necessarily takes place when a car which is at rest is started in motion ; and that, .therefore, the occurrence of the jerk or jar is not evidence of negligence. This is true to a certain extent, but only to a certain extent. The question, like most questions, is one of degree. Some jar must be experienced when a car assumes motion, but not necessarily a jar sufficient to cast down a standing person, or throw a seated passenger almost off his seat. In Miles v. King (18 App. Div. 41) this court held, per Hatch, J., even of a steam railroad, that “ the jury would be authorized to find that it was negligence to suddenly and without warning jerk the train so violently as to throw the passengers into the seats.” A fortiori would this rule be applicable to the case of a street car. But if we assume that a trolley car can be started only with a violence of motion that is not experienced in the starting of other cars or trains, it would not relieve the defendant' from liability. The measure of the defendant’s duty is the highest degree of human care and foresight. If there be this great danger in the operation of trolley cars, then the jury might well find that it was negligence to start a trolley car unless, the passenger has obtained a seat,, especially in the case of a woman. If' the claim of the defendant in respect to the necessity of jars and jerks be true, it does not relieve it from liability, but simply shifts' the exercise of its care from one direction to another. It cannot be [15] tolerated that a carrier, subject to the measure of diligence stated, may successfully assert that in the usual and proper management o'f its road a passenger must necessarily and ordinarily risk the safety of his body and bones. While the defendant is not a guarantor of the safety of its passengers, still it must find some way of so conducting its business that its passengers shall be reasonably safe and secure. If a danger is created by the method of operating the road or the power employed, then the defendant must take means to obviate that danger. Most of the cases cited by the respondent’s counsel are plainly distinguishable from the one before us. Hayes v. Forty-second St.; etc., R. R. Co. (97 N. Y. 259); Paulson v. Brooklyn City R. R. Co. (13 Misc. Rep. 387), and Bradley v. Second Avenue R. R. Co. (90 Hun, 419) were all cases where the parties voluntarily, and without necessity, were standing on the platform. Now, while it is not negligence per se to stand on the platform of a street car, it is but fair and reasonable that the person so riding should assume the risk ordinarily incident to such a position from the jolts and jars of the moving car, the unevenness of the track and the turning of curves,' and not increase the responsibility or liability of the carrier for his safety. But this rule has no application to a passenger who, from prudence or possibly from timidity, desires above all things the security of his person, and wishes to travel in a manner in which that security can and ought to be obtained. I think the ease of Black v. Third Avenue R. R. Co. (2 App. Div. 387) cannot be fairly construed as holding- that a passenger has not the right to attain a place of safety before the car should be started. Otherwise, the ease would be inconsistent with the subsequent. one of Grotsch v. Steinway Railway Co. (19 App. Div. 130), the opinions in both cases being written by the same learned judge. However, if the doctrine of the Black case is as claimed by the counsel for the respondent, we are not disposéd to adopt it. The true rule is stated in Akersloot v. The Second Avenue R. R. Co. (131 N. Y. 599), where it was held: “ It was his (conductor’s) duty to see that a passenger lawfully entering the car was in a place .of safety before giving the signal to the driver to proceed.” Since the foregoing was written the Court of Appeals has decided the case of Stierle v. Union Railway Company (156 N. Y. 70), in [16] which that court has corrected a prevailing misconception as to the measure of the duty of carriers of passengers in the operation of railroads — a misconception in which, I am frank to say, I shared. The case was one of injury to a passenger on a horse car, occasioned by alleged negligent driving on a switch. It was held that the defendant was only liable for the failure of the driver to use that skill and care which would be required of an ordinarily careful and prudent man. Whether this rule was intended by the court to apply to the operation of all railroads, either by horse power or by steam, and if distinction is to be drawn between horse cars and steam railroads, into which class the trolley car properly falls, I do not know. But assuming .that the liability in the operation of electric cars is no greater than that of horse cars, I am still of opinion that, considering the frequency of the occurrence of such accidents, the jury might properly find that it was want of even ordinary care to start the car until a woman had obtained her seat, whatever may be the rule when the passenger is a man. ■ The order granting a new trial should be reversed and judgment directed for the plaintiff on the verdict, with costs.. Hatch, J., concurred; Bartlett, J., concurred in result; Goodrich, P. J., and Woodward, J., dissented.