Ebling v. Second Avenue Railroad

69 N.Y.S. 1102, 60 A.D. 616

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1901
• Status: Published

Opinions

O’BRIEN, J.

We think that the dismissal of the complaint in this case should be affirmed, upon the ground that the preponderance of evidence is that the plaintiff’s injury was the result of his own act in running after and attempting to step upon the car while it was in motion. The plaintiff was the only witness in his own behalf as to the manner in which the accident occurred, and he was opposed and contradicted by no less than six witnesses, four of whom must be presumed to have been disinterested. The plaintiff’s version of the accident is that he was standing on the southwest corner of 101st street and 2d avenue for about a minute, awaiting a southbound car; that the defendant’s open horse car came along, and when it was about five feet above the north crossing he threw up his hands to signal the driver to stop; . that the driver was looking straight ahead, but at that moment he turned the brake and slowed down the car so that it came nearly to a standstill at the south crosswalk; that he did not at any time see the driver look at him; that as the car came along he put his right foot on the sideboard up near the front of the car, and with the right hand took hold of the post or handle; that he heard the conductor give a signal to start, and then the driver started the car ahead with a jerk, and he was thrown off upon his back, and the car ran over his leg. He denies that at any time he told any one that the accident happened through his own fault. On the part of the defendant, the driver admits that he slowed down the car as he came to and crossed 101st street, but avers that he did not see the plaintiff at all, and the plaintiff had not given him any signal; that what first attracted his attention was a single long whistle from the conductor, and he had received no signal to start ahead; that the plaintiff, after the accident, said it was his own fault. The driver further stated that, if he had seen a passenger signal from the south side of the street, he would have put on the brake. The conductor says that he was on the west side of the car at the time, and first saw the plaintiff running across the street diagonally from the north to the south side; that he did not give any signal to. start the car, though it had slowed up a little going across the street; that the driver was “looking out and minding his business,” and it was a rule of the company to slow up and look for passengers at crossings; that there was no jolt or jerk to the car, but the man fell while he was attempting to get on, and the car ran over him, and thereafter he said it was his own fault. Another witness testified for the defendant that he was sitting at the window of his room on the second story of the house, at the southwest corner of 101st street, and 2d avenue, and saw the plaintiff run towards the car and try to get on and slip and fall; that he heard but one whistle blown, and the car did not jerk; that the plaintiff thereafter said it was his own fault. A passenger on the car testified that he first saw the plaintiff near the south crosswalk as he was attempting to get on, and he fell right down, and before that time there had been no signal given by the conductor, and the car did not jerk; that the conductor gave the signal the moment the man fell. An ex police officer testified that he was on duty in the vicinity at the time of the accident, and saw the plaintiff after the accident, and he said that it was his own fault. Michael J. Slattery testified: That he was standing on the west side of the avenue, facing north, watching some boys, and about 10 feet south of 101st street, at the time of the accident. That he saw the car coming down, and “as the center of the car about passed me the plaintiff in this case made a rush right across at the north side of me, and ran diagonally across the street to jump on the car, and as he jumped on the car he made an attempt with his left hand, as I sh'ould say, to grasp the third stanchion from the forward end of the car, and raise his left foot to get on the footboard, and by so doing he slipped and fell. * * * I heard the conductor blow the whistle,—a long whistle. I made a spring across the street, and raised him in my arms. * """ * I did not see this plaintiff, before he ran out towards the car, give any signal to that driver of any kind. He did not give no intimation whatever, but ran right across from my side. I saw him when he left the sidewalk. * * * There was no signal blown to start that car while that car was passing over 101st street or passing me.” That he did not see anything on the part of the driver to have the car go unusually slow, though he was still looking north as the car reached the south crosswalk. That the plaintiff had said thereafter that it was his own fault. Upon this testimony, I think that the complaint should have been dismissed, for the reason that the preponderance of evidence shows that the plaintiff ran from a point back of the car, so that he was not in the vision of the driver, and, as he was attempting to board the car while it was in motion, fell, not from a starting or jerking, of the car, but because he slipped.

The judgment should therefore be affirmed, with costs.

VAN BRUNT, P. J., and HATCH, J., concur.