Coleman v. Second Avenue Railroad

New York Supreme Court

Coleman v. Second Avenue Railroad

48 N.Y. Sup. Ct. 380, 1 N.Y. St. Rep. 580

DecidedJuly 15, 1886

StatusPublished

This text of 48 N.Y. Sup. Ct. 380 (Coleman v. Second Avenue Railroad) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Coleman v. Second Avenue Railroad, 48 N.Y. Sup. Ct. 380, 1 N.Y. St. Rep. 580 (N.Y. Super. Ct. 1886).

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Opinion

Barnard, P. J.:

The plaintiff was a passenger in the defendant’s car sitting in the rear seat. The company permitted him to be crowded out by other passengers. The car was an open one. There is a step outside the car upon which the passengers enter the car, and it can be and is used to pass from seat to seat. When the plaintiff was made uncomfortable, if not unsafe, he attempted to pass along the step to a front seat where it was less crowded. In doing so he was struck by the iron column of the elevated railroad. At this point the car track of the defendant’s street railroad is closer than usual to the iron supports of the elevated railroad. They are of uniform distance, but the street road varies sometimes in distance between its tracks, and thus their cars are brought in some places nearer the iron columns of the elevated road than in others. It was not a negligent act, as matter of law, for the plaintiff to attempt to use the step to place himself in a new seat in the place of the one from which the defendant had permitted him to be forced. (Dixon v. Brooklyn City, etc., R. R., 100 N. Y., 171.)

It was not negligence, as matter of law, to misjudge the distance between the car and the iron column, especially so when this column was nearer than they usually were, and with a car which itself projects considerably over the space between the defendant’s tracks and [382]*382the elevated railroad structure. (Dobiecki v. Sharp, 88 N. Y., 203; Brassell v. N. Y. C. and H. R. R. R. Co., 84 id., 241.)

The charge of the judge in respect to the principles which govern this class of actions is supported by numerous cases. The carrier is bound to use the highest degree of foresight in anticipating possible danger and in guarding against them, and it was for the jury to say under the evidence whether this duty was performed.

The requests to charge to the effect that the plaintiff was bound to stop the car or request the conductor to do so, did not present a question of law, but one of fact for the jury. If the request was good there was no question for the jury. The plaintiff did not ask the conductor to stop, but proceeded to release himself from a difficulty in which the defendant had placed him, by using a step apparently safe to be used for the purpose.

The judgment should be affirmed, with costs.

Dykman, J., concurred; Cullen, J., not sitting.

Judgment and order denying new trial affirmed, with costs.

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Barnard, P. J.:

The plaintiff was a passenger in the defendant’s car sitting in the rear seat. The company permitted him to be crowded out by other passengers. The car was an open one. There is a step outside the car upon which the passengers enter the car, and it can be and is used to pass from seat to seat. When the plaintiff was made uncomfortable, if not unsafe, he attempted to pass along the step to a front seat where it was less crowded. In doing so he was struck by the iron column of the elevated railroad. At this point the car track of the defendant’s street railroad is closer than usual to the iron supports of the elevated railroad. They are of uniform distance, but the street road varies sometimes in distance between its tracks, and thus their cars are brought in some places nearer the iron columns of the elevated road than in others. It was not a negligent act, as matter of law, for the plaintiff to attempt to use the step to place himself in a new seat in the place of the one from which the defendant had permitted him to be forced. (Dixon v. Brooklyn City, etc., R. R., 100 N. Y., 171.)

It was not negligence, as matter of law, to misjudge the distance between the car and the iron column, especially so when this column was nearer than they usually were, and with a car which itself projects considerably over the space between the defendant’s tracks and [382]*382the elevated railroad structure. (Dobiecki v. Sharp, 88 N. Y., 203; Brassell v. N. Y. C. and H. R. R. R. Co., 84 id., 241.)

The charge of the judge in respect to the principles which govern this class of actions is supported by numerous cases. The carrier is bound to use the highest degree of foresight in anticipating possible danger and in guarding against them, and it was for the jury to say under the evidence whether this duty was performed.

The requests to charge to the effect that the plaintiff was bound to stop the car or request the conductor to do so, did not present a question of law, but one of fact for the jury. If the request was good there was no question for the jury. The plaintiff did not ask the conductor to stop, but proceeded to release himself from a difficulty in which the defendant had placed him, by using a step apparently safe to be used for the purpose.

The judgment should be affirmed, with costs.

Dykman, J., concurred; Cullen, J., not sitting.

Judgment and order denying new trial affirmed, with costs.

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48 N.Y. Sup. Ct. 380, 1 N.Y. St. Rep. 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-second-avenue-railroad-nysupct-1886.

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