Plutschow v. Metropolitan West Side Elevated Railway Co.

Mr. Justice Freeman delivered the opinion of the court. It is contended in behalf of the defendant, first, that the Superior Court erred in not directing a verdict in favor of the defendant at the close of the plaintiff’s evidence; and second, that the verdict is against the weight of the evidence. As to the first of these contentions defendant insists that the evidence in behalf of the plaintiff shows the accident occurred solely by reason of the negligence of the plaintiff himself. The testimony in plaintiff’s behalf as to the accident is given by himself and one other witness. This evidence is fully set forth in the foregoing statement. It is contended by defendant’s counsel that the plaintiff’s evidence tends to show that plaintiff met with the accident by reason of his own negligence in trying to get on the train when the gates were closing, in clinging to the car outside the gate, and that he was brushed off by the railing within about five feet, it is said, after the car started. We deem it unnecessary critically to analyze this evidence to determine whether or not it should be regarded as sufficient to make a prima facie case, since we are compelled to the conclusion that whether so or not, the verdict is not supported by the preponderance of the evidence. The plaintiff’s statement that he was on the platform at the time the train arrived has no corroboration by any other witness. Three passengers testify to the effect that they saw him running to catch the train and two of them corroborate the conductor, who testifies that he had closed the gates before the plaintiff reached the car. This is consistent with plaintiff’s statement that he and his companion “both ran for the train.” Why they should have run for the train if, when it came up, they had been waiting for its arrival fifteen minutes, the plaintiff does not attempt to explain. If, however, as the preponderating evidence tends to show, plaintiff was late in getting to the station and came running up the stairway and along the station platform as the conductor was closing the gates, and was still some feet away when the gates were actually closed, the statement of the plaintiff himself that he “ran for the train” becomes intelligible. Plaintiff testifies that “the gate was within eight inches of being shut when I got on.” He says the gate came against him at the waist line as he attempted to board the car and that “the train had started up. I can’t tell how far the train had moved at the time the conductor pushed the gate against me.” He thus seems to concede that he was trying to get on a moving train. The conductor testifies that the train made the usual time stop to take on passengers and let them off; that when he closed the gates and rung the bell no one was on the platform, and that after doing this and calling off the next station in one car and when he turned to call it off in the next car he saw plaintiff with his hand on the car gate. As to the charge in the declaration that the conductor pushed the plaintiff off the car, it is not sustained by the evidence. Plaintiff’s evidence tends to show that he put his hand against plaintiff, telling him to get off, while plaintiff apparently might still have done so in safety on the station platform; but the evidence on both sides shows conclusively that it was the rail at the end of the platform which brushed plaintiff off the train. The evidence fails we think to show negligence on the part of the defendant causing the accident and does tend to show clearly that the plaintiff’s injuries were the result of his own negligence in attempting to board and persisting in clinging to a moving car on an elevated railway train after the gates thereon had been closed or were being closed, thus giving full notice that the time for an intending passenger to board the car had passed. The case is not unlike that of Robinson v. Manhattan Ry. Co., 5 Misc. 209 (N. Y.), in which it is said: “The gateman was authorized to act upon the assumption that the intestate when denied entrance into the car would step back on the platform of the station.” In Solomon v. Manhattan Ry. Co., 103 N. Y. 437, it is said: “It is we think the general rule of law, established by the decisions in this and other States,' as claimed by the learned counsel for the respondent, that the boarding or alighting from a moving train is presumably and generally a negligent act per se, and that in order to rebut this presumption and justify the recovery for an injury sustained in getting on or off a moving train, it must appear that the passenger was, by the act of the defendant, put to an election between alternative dangers, or that something was done or said, or that some direction was.given to the passenger by those in charge of the train, or some situation created, which interfered to some extent with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.” For the reason indicated the judgment of the Superior Court must be reversed with a finding of facts. Reversed with finding of facts. Mr. Justice Baker dissenting.