Garber v. Joline

119 N.Y.S. 1070

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 22, 1909
• Status: Published

Opinion

GIEGERICH, J.

The defendants rested at the close of the plaintiff’s case, and, their motion for a nonsuit being denied, the case was left to the jury, which found for the plaintiff. From the order denying their motion to set the verdict aside and for a new trial, they take this appeal.

It appeared from the testimony of the plaintiff and his witnesses that he boarded a street car of a line operated by the defendants, and, there being no room in the car, he stood on the front platform. A number of people stood on the platform with him. After traveling about two blocks, the car collided with a coal wagon which was standing against the curb. The car was going very fast. When a collision appeared inevitable, some of the passengers called to the motorman to stop the car, and he replied that he could not stop because of the crowd pressing against him. The plaintiff’s body came into collision with the coal wagon, and he was thrown from the car and injured.

It is clear enough that the verdict was justified by the evidence. If the jury believed that the motorman permitted the platform of the car to be so overcrowded that he could not work his brakes or keep the car under control, they were justified in finding the defendant guilty of negligence; and it was not negligence on the part of the plaintiff, as a. matter of law, to ride on the platform of the car. He doubtless assumed the natural and ordinary risks involved in riding in that position; but he was not required, as a matter of law at any rate, to foresee that the motorman might permit his car, through overcrowding of the platform or otherwise, to get beyond his control while traveling at a high rate of speed. Kramer v. Brooklyn Heights R. R. Co., 190 N. Y. 310, 83 N. E. 35. That was by no means a risk incident to the position.

Order affirmed, with costs.

GOFF, J., concurs. LEHMAN, J., concurs in result.