Hills v. Interborough Rapid Transit Co.

Appellate Division of the Supreme Court of New York

Hills v. Interborough Rapid Transit Co.

176 A.D. 754, 163 N.Y.S. 1010, 1917 N.Y. App. Div. LEXIS 5254

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 23, 1917

StatusPublished

This text of 176 A.D. 754 (Hills v. Interborough Rapid Transit Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hills v. Interborough Rapid Transit Co., 176 A.D. 754, 163 N.Y.S. 1010, 1917 N.Y. App. Div. LEXIS 5254 (N.Y. Ct. App. 1917).

Pincite

Opinion

Scott, J.:

We are of the opinion that the verdict is against the evidence both upon the question of defendant’s negligence and upon that of plaintiff’s contributory negligence. As the cause will have to be retried, it would serve no useful purpose to discuss the evidence in detail.

One objection is made to the charge, which we refer to because the same question may arise on a retrial. The principal question of fact in the case was whether plaintiff had boarded the defendant’s car upon an elevated railway but had not reached a place of safety when he was knocked off by the closing of the platform gate or whether he had attempted to board the car after the gate had been closed and the train started. In his requests to charge counsel for the plaintiff read what purported to be, but which was the substance of, section 138 of the Railroad Law, as follows: “No train on such elevated railroad shall be permitted to start until every passenger from the platform or station at which such train has stopped, who desires to board such car, shall have boarded said car,” and the court said, “I so charge;” and specifically charged that it was the duty of the railroad to wait until every passenger had boarded the car. (See Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 138; now Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 239.) This was undoubtedly a correct statement of defendant’s statutory duty, but it had no bearing upon the question before the jury. Even if the guard had, in violation of the statute, closed the gate before every passenger had boarded the car, it would not have freed a passenger who attempted to board after the gate had been closed from the imputation of negligence. The charge was calculated to mislead the jury and may have contributed to the verdict.

[756]*756The judgment and order appealed from are reversed and a new trial granted, with costs to appellant to abide the event.

Olarke, P. J., Laughlin, Smith and Shearn, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

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Scott, J.:

We are of the opinion that the verdict is against the evidence both upon the question of defendant’s negligence and upon that of plaintiff’s contributory negligence. As the cause will have to be retried, it would serve no useful purpose to discuss the evidence in detail.

One objection is made to the charge, which we refer to because the same question may arise on a retrial. The principal question of fact in the case was whether plaintiff had boarded the defendant’s car upon an elevated railway but had not reached a place of safety when he was knocked off by the closing of the platform gate or whether he had attempted to board the car after the gate had been closed and the train started. In his requests to charge counsel for the plaintiff read what purported to be, but which was the substance of, section 138 of the Railroad Law, as follows: “No train on such elevated railroad shall be permitted to start until every passenger from the platform or station at which such train has stopped, who desires to board such car, shall have boarded said car,” and the court said, “I so charge;” and specifically charged that it was the duty of the railroad to wait until every passenger had boarded the car. (See Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 138; now Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 239.) This was undoubtedly a correct statement of defendant’s statutory duty, but it had no bearing upon the question before the jury. Even if the guard had, in violation of the statute, closed the gate before every passenger had boarded the car, it would not have freed a passenger who attempted to board after the gate had been closed from the imputation of negligence. The charge was calculated to mislead the jury and may have contributed to the verdict.

[756]*756The judgment and order appealed from are reversed and a new trial granted, with costs to appellant to abide the event.

Olarke, P. J., Laughlin, Smith and Shearn, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

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Bluebook (online)

176 A.D. 754, 163 N.Y.S. 1010, 1917 N.Y. App. Div. LEXIS 5254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hills-v-interborough-rapid-transit-co-nyappdiv-1917.