Micklin v. Union Railway Co.

125 Misc. 863, 212 N.Y.S. 291, 1925 N.Y. Misc. LEXIS 1240, 1925 N.Y. App. Div. LEXIS 10782

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 13, 1925
• Status: Published

Opinion

Per Curiam:

The two questions presented by the record are the plaintiff’s freedom from contributory negligence and the proof as to operation and control.

In regard to the latter, plaintiff testified that the name of the defendant appeared on the trolley car on which she suffered the injury, and that is sufficient to establish a prima facie case.

The accident occurred by reason of the fact that the door of a trolley car, which operated in conjunction with a folding step, was part way open. The opening was sufficient for plaintiff to pass through and as she proceeded to descend and placed her foot upon the step, it unfolded beneath her and threw her to the ground.

These circumstances alone do not in our opinion constitute contributory negligence. The car was at a standstill and the open door was an invitation to descend. She had no reason to anticipate any accident under those circumstances.

The judgments dismissing the complaints in this and the accompanying action for loss of services are reversed and new trials ordered, with costs to appellants to abide the event.

Judgments reversed and a new trial ordered, with fifteen dollars costs to appellants in each case to abide the event.

All concur; present, Guy, Bijur and Mullan, JJ.