Distler v. Long Island Railroad

DYKMAN, J. This action is based upon negligence. The plaintiff was nonsuited at the circuit, and from the judgment dismissing his complaint he has appealed to this court. As a special train upon the' defendant’s road was approaching the East New York station it slowed down for another railroad crossing, without, intending to stop at the station. It was not scheduled to stop there. As the train approached the crossing and the station, which was near, the plaintiff was waiting to board it, and the conductor called out to him to get on. As he jumped upon the step of the car it started suddenly forward, and he was thrown to the ground, and seriously injured. The plaintiff was nonsuited at the circuit, and has appealed from the judgment dismissing his complaint. It is exceedingly hazardous to attempt to board a train upon a steam railroad when in motion. According to the law as settled in this state, it is presumably negligent, and, unless such presumption of negligence is overcome by testimony offered by the plaintiff, there can be no recovery in such a case. “To excuse such an act, and free the plaintiff from the charge of contributory negligence, there must be a coercion of circumstances which did' not leave the passenger the free and untrammeled possession of his faculties and judgment.” Solomon v. Railroad Co., 103 N. Y. 437, 9 N. E. 430; Hunter v. Railroad Co., 126 N. Y. 18, 26 N. E. 958. In this case there was no coercion of circumstances, and the presumption of contributory negligence must prevail against the plaintiff. The judgment should be affirmed, with costs.