Bruce v. Brooklyn Heights Railroad

Woodward, J.: This action was brought to recover damages for personal injuries resulting in the death of plaintiff’s intestate, through the alleged negligence of the defendant. We apprehend that it is not the law of this State that a street surface railway must be built upon a straight line, after the manner said to have been directed by the Czar of Russia in the construction of a transcontinental railroad, or that, in the practical operation of the cars, they shall be so handled as never to sway or vibrate. We shall assume that such corporations may construct their lines upon approved engineering plans, with such grades and curves as shall be necessary in the practical accomplishment of the .purpose for which they are created, and that in the operation of the cars they may, subject to the liability for the negligent injuring of passengers or persons lawfully upon the highways with their property, run them in such a manner as to meet the requirements of transportation. In other words, it is not required that in the operation of street railway cars there shall be no swaying of the cars, no jars or jolts; these are reasonably to be expected in the practical discharge of the duties which are assumed by the corporation in accepting its franchise, and it is the duty of passengers to take notice of the obvious fact -that a car weighing from four to ten tons, running at a practical rate of speed, will be subject to the laws of applied mechanics, and will be swayed with greater or less violence in passing around curves, and will be jolted to some extent in passing over other tracks at street intersections. This does not give the street railway company a license to operate its cars without regard to the safety of passengers • it owes them the duty of carrying them in safety over its lines, provided, always, that the passenger has been guilty of no neglect contributing to the accident. For instance, if a passenger is occupying a seat in a car and voluntarily.leaves that seat and steps down upon — 244 — the running board of an open car, and, without taking hold of any thing, relies upon his being able to keep his balance, and the car in passing around a curve should throw him off, the company would not be liable, even if it were negligent in the operation of the car; and the burden of proving lack of contributory negligence is upon the plaintiff at all times. It is true, of course, if the injury happened to the passenger while occupying a seat' provided by the company, the presumption of lack of contributory negligence would at once arise, but it is none the less proved by the plaintiff by establishing the facts which made it impossible for the passenger' to contribute to the accident, as in the case of a collision or the. derailing of a car. There are no presumptions that a man has been free from contributory negligence; the plaintiff ,must affirmatively show, either by direct proof, or by facts and circumstances from which the inference may be properly drawn, that the plaintiff has been guilty of no act directly contributing to the accident (Chisholm v. State, 141 N. Y. 246, 249, and authorities there cited), and this court, in the case of Brainard v. Nassau Electric R. R. Co. (44 App. Div. 613), recognized no new rule of law. It was there said : “ It is fair to assume, we think, that the deceased, as he stood upon the running board of the car, was using such means as were furnished for security to a person standing thereon,” but the court did not assert that this assumption would be justified in all cases, for it continued: “ He had ridden some distance and maintained his position, and the language of one of the witnesses who saw him is that as ‘ the jerk came * * * JVIr. Brainard was knocked off.’ The language of the other witnesses, and the fact that a person must use a support to remain upon the running ' board while a 'car is in motion, justify the inference that it was the sudden jerk which caused the fall and not any lack of making use of the supports. The car was crowded with passengers, and riding upon the running board' was not per se negligence.” It thus appears that the facts as they were established by the evidence were the basis for the assumption that the deceased had made Use of the opportunities for holding on while in a position of danger, and not any presumption which arises that a man has been free from contributory negligence; it simply stands at the commencement of the trial at zero, and the plaintiff is called upon to — 245 — establish affirmatively that the deceased was not guilty of acts contributing approximately to the accident. This may be done by showing facts from which the inference may be fairly drawn, as well as by direct proof. (Thomp. IS!eg. 359, and authorities cited.) Having these fundamental principles of the law of negligence in mind, we will look at the- facts developed by the evidence in the case now before us. The accident producing the injuries complained of occurred at what is known as Rapelyea’s curve in Grand street, Brooklyn. This is approximately a tliirty-three-degree curve, with a radius of from 185 to 200 feet, and is described by one of the witnesses as a “ wide curve,” as distinguished from a right-angle curve along ordinary highways, and while it is not to be doubted that a car approaching this curve at a high rate of speed would be swayed sufficiently to disturb the equilibrium of persons standing up without support, there is nothing in the evidence to indicate that the car in use at the time of this accident was swayed enough to cause more than a momentary disturbance of the equilibrium of the passengers seated in the car, or that it would have been remembered by any of them, except for the accident which occurred at about the same time. The plaintiff’s intestate was a policeman, and two of his brotlier officers, who were in the car at the time of the accident, and who were called by the plaintiff, testify that there was nothing in the movement of the car on this occasion of which they complained. One of them says: “ I was perfectly satisfied to have the ear going as it was,” and the other says: “ Hone of us made any complaint concerning the speed that the car was going. There was nothing in the way that the car was going that appealed to us as police officers that seemed to demand our interference, so that none of us spoke to either the motorman or conductor.' So that for all practical purposes I and my brother officers were satisfied with the way the car was going. We were not making any complaint.” The evidence is uncontradicted that Hr. Bruce, plaintiff’s intestate, entered the car of the defendant about half a mile from the scene of the accident, and occupied a seat inside of the closed car; that he was in the habit of riding in the cars of the defendant in coming home from his beat, and that he usually left the car about 300 feet beyond the curve where this accident occurred, the car — 246 — running out from Brooklyn toward Newtown; that when about 500 or 600 feet from the curve Hr. Bruce left his seat inside of the car and went out upon the front platform at the left of and behind the motorman, and stood with his back against the front of the car. Only two persons claim to have been eye-witnesses of the . accident. One of these was a boy about seventeen years old at the time, who testifies that he saw Hr. Bruce upon the front platform, and that when the car struck the curve it was running at the rató of about twenty miles per hour, and that Mr. Bruce was thrown over the chain which was placed across' the entrance to the front platform on the left-hand side, striking upon his head, producing the injuries resulting in his death. This witness testifies that this chain was about three feet and a half high; that he saw this chain at a distance of about 1,400 feet though at the time he was where he would have to look over the gate upon the right-hand side of the car, past the motorman and the plaintiff’s intestate, in order to see this chain. The evidence is overwhelming that there was no chain in use upon this car, the entrance on the left-hand side being guarded by an accordeon or folding gate. The evidence is that Mr. Bruce was not a tall man, a little taller than counsel for the plaintiff, and that he weighed about 165 to 170 pounds. He was standing, or had been standing, the last time he was seen alive by plaintiff’s witnesses, inside of the car, upon the front platform back of the motorman-, with his back against the front of the car, and to the left of the motorman, so that he must have been within two feet of the alleged chain, if there was a chain, which the witness says was three and one-half feet high, and this witness testifies: “ I seen, just as the car come around the curve and-hit the curve, Bruce was lifted off his feet and thrown over the chain,” and that his head struck the pavement first. Assuming that Bruce.was six feet tall, and the evidence would not support such an assumption, and that the chain was three and one-half feet high, and this is the evidence, “ about three foot and a half,” and that Bruce was two feet from the chain, does airy one believe that a man weighing 165 pounds could be thrown over this chain in the manner described by the witness, particularly if we take this evidence in connection with the evidence that the passem gers within the car were not seriously disturbed by the lurching — 247 — of the car as it reached the curve ? If this is not a physical impossibility, it is certainly highly improbable, and when we remember that it rests wholly upon the testimony of this boy, who swears that he saw this chain at a distance of about 1,400 feet, when the evidence is overwhelming that there was no chain upon the car, and that he did not, after witnessing the accident, remain to see whether the man was killed or not, and that he did not report the accident at home, or tell any one of the fact that he had seen the accident up to within a few weeks of the trial, the whole case seems so unworthy of credence that if the testimony was wholly undisputed we should feel that injustice would result from an affirmance of the judgment. This boy, Benjamin Coordes, is the only witness who places the speed of the car at twenty miles per hour, the others ranging from nine to fifteen miles per hour, and it is the defendant’s witness, the motorinan who "was running the car, who mentions this speed as having been attained before reaching the curve, though he says the ■car was running up a slight grade, and that the power was turned off, so that the speed was somewhat reduced at the moment of the ■accident. This witness, who appears singularly frank and straightforward, and who was the only other eye-witness of the accident who was produced upon the trial, says that he had' been running the car at the rate of about fifteen miles per hour; that he does not know when Mr. Bruce came out on the platform; that the first intimation of his presence was when he was just about to enter the ■curve; that at that time deceased “ raised his right hand partly at my side. * * * He did not touch me nor he did not speak; he raised the hand so I took that as a signal that he wanted to get •off, and whether I had thrown off my power before that or not I don’t know, but I threw off the power about that time anyhow, as I would have done whether there was a person getting off there ■or not in order to round the curve. So I proceeded to stop the car, and just simultaneously with his signaling me he caught the bolt of the gate, drew it up, pushed the gate towards the dashboard ■and stepped down on the step of the car. I shouted to him to hold on, or some words to that effect,, but he didn’t. He stepped right down in the street, and although I won’t state positively, I believe lie didn’t have hold of anything when he did step.” — 248 — There is no evidence to dispute the statement of the motorman that he did not know that Bruce was upon the platform until the latter signaled. The evidence is overwhelming that the car was. ■ equipped with the kind'of a gate which the motorman describes as-being opened by plaintiff’s intestate, and the boy who tells the story on which the plaintiff relies not only contradicts himself, refusing-to answer pertinent questions, but not one of the witnesses who were concededly on the ground was able to say that they had' any recollection of seeing him anywhere in the vicinity. The boy himself' makes no mention of any one with the exception of the motorman. and Mr. Bruce, and he says ujdoií cross-examination : “ All I seen was Mr. Bruce; that was all. I saw Mr. Bruce. He'was lying-right between the two tracks straight up and down. The car had come to a stop by that time. I did not see people get out of the car. I did not see any officers get out of the car at all. I didn’t-see- any officers- there at all.” 1 Yet the evidence is undisputed that the two officers were there that they got out of the car as soon as it stopped and ran to the man who had been injured, and it is also undisputed that the conductor and motorman were there and rah to the assistance of Mr. Bruce, while two or three other passengers disappeared in the excitement. This all occurred in a thinly settled district where it would be Very strange if seven or eight people could, congregate around a man who had been thrown from a street car and seriously injured without their being seen by the person who witnessed the accident, and the car stopped as appears from the evidence within ' thirty feet of' where Mr. Bruce was lying, and at least three or four-persons must have been near Mr. Bruce within á few seconds of the-time that he received the injury. But assuming that this witness, Benjamin Coordes,- was not discredited, and that the jury was bound to believe that Mr. Bruce was thrown over the alleged chain, there is no evidence that plaintiff’s intestate was free from negligence contributing to the accident. Coordes does not mention any act on the part of Mr. Bruce or anything from which such an inference may be drawn, and no one else,, with the exception of the motorman, pretends to have seen him at the time of the accident. All that is established by the evidence . is that Mr. Bruce left the interior of the car, where it is not to be — 249 — doubted lie was perfectly safe, and took a place upon the platform of the car. Conceding that it was not negligence per se to occupy a place upon the front platform of a car, it is equally certain that it is not evidence of lack of contributory negligence. No legitimate inference may be drawn from the fact that a man leaves the interior of the car, where he is not crowded and where the defendant has afforded accommodations for its passengers, and goes out on the front platform, that he is free from contributory negligence at a time when he reaches the platform. It is undisputed that he gave no sign to the, motorman that he was present upon the platform until just at the moment of entering upon the curve; and if it be held that it was negligent upon the part of the defendant not to operate its cars in such a manner as not to injure one who had quietly taken a place upon the platform without the knowledge of the defendant’s servants, it cannot be said that it is evidence of a lack of contributory negligence on the part of plaintiff’s intestate, and without such evidence the .plaintiff cannot recover. It should be remembered that the defendant is not called upon to prove that the plaintiff’s intestate is guilty of contributory negligence. The burden is upon the plaintiff to show that the deceased did no act approximately contributing to the accident (Riordan v. Ocean Steamship Co., 124 N. Y. 655), and we search the record of 'this case in vain for such evidence. The defendant had erected gates or a chain for the purpose of guarding the entrance to the front platform. There was no invitation, express or implied, for passengers to occupy a place upon this platform, which, it may be assumed (for it is in accord with public policy and the safety of passengers and those occupying the highways), was reserved for the use of the motorman, whose duty it is to keep a lookout ahead and to get his instructions from the signals given by the conductor as to matters which are not within the scope of his vision, and if the plaintiff’s intestate went, out there and stood up, when there was no occasion for his leaving the interior of the car, without giving the motorman any intimation of his presence, it may be that the defendant owed him no higher duty than it owed to passengers who were inside' of the car and occupying the seats provided for them. It is not, however, necessary to determine this point. — 250 — . The plaintiff has failed to establish by evidence that her intestate was free from contributory negligence, or to bring forward any facts from which such an inference may be legitimately drawn, and the weight of evidence is clearly with the defendant, not only that the accident was not due to the negligence of the defendant, but that the injury resulted solely from the negligence of the plaintiff’s intestate. Under such circumstances it only remains to say that the judgment should bo reversed and a new trial granted, with costs to abide the event. Goodrich, P. J., concurred; Hirsohberg, J., read for affirmance.