Kinkade v. Atlantic Avenue Railroad

Clement, Ch. J; The counsel for the appellant in this case seeks a reversal on only two grounds: First, that there was no proof of negligence on the part of the employees of the defendant, and, second, on the ground that the verdict for $10,000 was excessive. We have carefully read the record in this case and find no ground for disturbing the result at the trial term. We will go further and say that the appeal seems to us- to be taken solely for delay. It was decided by this court in the case of Medler against this company (12 N. Y. Supp. 930, affirmed in Court of Appeals, without opinion, 126 N. Y. 669) that it was negligence for the driver to suddenly start an open horse car when the passenger was on the step for the purpose of alighting therefrom. The converse of the rule would seem equally true, that it was a negligent act to suddenly and without warning start when the passenger was on the step and before he had time to get his seat in the car. The defendant’s counsel, however, contend that plaintiff was riding on the step for the reason that he could not find a seat. If so, the case is stronger against the company. If the plaintiff was forced to ride in a dangerous place, then he was not guilty of contributory negligence in so doing, and the employees of the company were bound to exercise greater care. Spooner v. Brooklyn City R. R. Co., 54 N. Y. 230; Werle v. L. I. R. R. Co., 98 id. 650. [275] The verdict was not excessive within the principles laid down by this court in the case of Vail v. Broadway R. R. Co., 6 Misc. Rep. 20. The judgment and order denying new trial should be affirmed, with costs. Osborne, J., concurs. Judgment and order affirmed, with costs.