Dorff v. Brooklyn Heights Railroad

95 A.D. 82, 88 N.Y.S. 463

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1904
• Status: Published

Opinion

Woodward, J.:

The plaintiff was nonsuited, and is, of course, entitled to the mo favorable view of her evidence which the jury might properly have taken (Eastland v. Clarke, 165 N. Y. 420, 425), and we are clearly of opinion that it was error to dismiss the complaint. There was evidence from which the jury might properly have found that the plaintiff was a passenger upon one of the defendant’s street surface railroad cars; that while she was quietly sitting in the middle of the car, and without negligence on her part, flames and smoke appeared in various parts of the car, creating a panic among the passengers; that she, with others, attempted to leave the car, some through the windows and others by means of the door, and that while thus endeavoring to escape from what appeared to be a menace to their safety, the plaintiff fell or was pushed down, receiving injuries of a more or less serious character. It is true that her complaint alleged that she “ believing herself in great peril, and to save her life, jumped from said car and fell upon the ground and was thereby severely bruised,” etc., while the evidence developed that she did not recollect what occurred in the rush, and one of her witnesses testified that she fell upon' the platform of the car, but this did “not change substantially, the claim or defence,” and the pleadings might very properly have been deemed amended to conform to the facts proved under .the provisions of section 723 of the Code of Civil Procedure. In all other respects we are unable to distinguish this case from that of Poulsen v. Nassau Electric R. R. Co. (18 App. Div. 221) and Poulsen v. Nassau Electric R. R. Co. (30 id. 246), and this requires a reversal of the judgment: The views of the court in Weiler v. Manhattan Railway Co. (53 Hun, 372), where the duty of the defendant was that only of ordinary care, are applicable to the facts developed in this case, particularly the comment at page 375.

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.