Johnson v. Brooklyn & Queens Transit Corp.

249 A.D. 779, 292 N.Y.S. 323, 1936 N.Y. App. Div. LEXIS 5977

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 1936
• Status: Published

Opinion

The plaintiffs are husband and wife. Plaintiff wife has recovered on the theory that she sustained personal injuries as a result of the negligence of the defendant in the operation of one of its cars, on which she was a passenger. Defendant appeals from a judgment entered on verdicts of a jury in favor of the plaintiff wife, and in favor of the plaintiff husband for the loss of his wife’s services. Judgment reversed on the law and the facts and a new trial granted, costs to appellant to abide the event, on the ground that the verdicts are against the weight of the evidence. The plaintiff wife’s claim is that as the car approached the avenue at which she wished to alight, she went forward, other passengers having preceded her, and took her position at the door, waiting for the car to stop, the doors to open and the step to be lowered. She states that the ear came to a sudden and unusual stop simultaneously with which the doors flew open and she fell out. ’While she did not testify that the passengers who preceded her to the door left the car before she did, that is the theory of the defense; and if that theory is correct, the accident could not have happened as she said it did. Defendant’s witness McDonnell, a prospective passenger, was waiting for the car at the comer. He testified that the plaintiff wife was the fourth passenger and that she stepped from the platform to the step of the car and fell from the step to the street. McDonnell’s testimony is consistent with the plaintiff wife’s testimony that other passengers preceded her in the car. Coneededly, the motorman of the car died before the trial. Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ., concur.