La Clair v. New York City Railway Co.

Appellate Terms of the Supreme Court of New York

La Clair v. New York City Railway Co.

92 N.Y.S. 837

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 21, 1905

StatusPublished

This text of 92 N.Y.S. 837 (La Clair v. New York City Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

La Clair v. New York City Railway Co., 92 N.Y.S. 837 (N.Y. Ct. App. 1905).

Pincite

Opinion

BLANCHARD, J.

This is an appeal from a judgment dismissing a complaint. The plaintiff, a woman, was a passenger on a car owned and operated by the defendant. She had with her two small children— one a baby in arms, and the other a boy whom she led. The car was an open car, and before it reached its stopping place the conductor lowered the rail on the right side, and raised the rail on the left. When the car reached its destination, it stopped, and the conductor cried, “All out!” The plaintiff, who was occupying a seat in about the middle of the car, arose, and, placing the baby on her left arm, and leading the boy with her right hand, proceeded to the edge of the car. She placed the boy on the seat, and, while holding the baby on her left arm, stepped from the car. The running board was up, and. she fell to the street, and sustained the injuries of which she complains. On cross-examination she admitted that she did not look to see if the running board was in place before she stepped, and the trial court dismissed the complaint on the ground that, as a matter of law, she was guilty of contributory negligence.

We think this was error. The plaintiff had the right to asssume that the conductor would not order her out of the car until the step or running board had been properly adjusted for her to leave the car in safety, and her failure to observe was not negligence, as a matter of law. The circumstances are significant and important. She was in the presence of the conductor, who was in duty bound to care for her, and she had a right to assume that he would do his duty. The baby was on her left arm, and the sight of the running board or step may have been cut off, had she looked to see it, and her attention may have been diverted by •care for the safety of the children. Whether or not.the plaintiff was herself negligent was a question .of fact which should have been submitted to the jury for determination, under all the facts and circumstances of the case.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event. All concur.

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BLANCHARD, J.

This is an appeal from a judgment dismissing a complaint. The plaintiff, a woman, was a passenger on a car owned and operated by the defendant. She had with her two small children— one a baby in arms, and the other a boy whom she led. The car was an open car, and before it reached its stopping place the conductor lowered the rail on the right side, and raised the rail on the left. When the car reached its destination, it stopped, and the conductor cried, “All out!” The plaintiff, who was occupying a seat in about the middle of the car, arose, and, placing the baby on her left arm, and leading the boy with her right hand, proceeded to the edge of the car. She placed the boy on the seat, and, while holding the baby on her left arm, stepped from the car. The running board was up, and. she fell to the street, and sustained the injuries of which she complains. On cross-examination she admitted that she did not look to see if the running board was in place before she stepped, and the trial court dismissed the complaint on the ground that, as a matter of law, she was guilty of contributory negligence.

We think this was error. The plaintiff had the right to asssume that the conductor would not order her out of the car until the step or running board had been properly adjusted for her to leave the car in safety, and her failure to observe was not negligence, as a matter of law. The circumstances are significant and important. She was in the presence of the conductor, who was in duty bound to care for her, and she had a right to assume that he would do his duty. The baby was on her left arm, and the sight of the running board or step may have been cut off, had she looked to see it, and her attention may have been diverted by •care for the safety of the children. Whether or not.the plaintiff was herself negligent was a question .of fact which should have been submitted to the jury for determination, under all the facts and circumstances of the case.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event. All concur.

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Bluebook (online)

92 N.Y.S. 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/la-clair-v-new-york-city-railway-co-nyappterm-1905.