Mullane v. New York City Railway Co.

Appellate Terms of the Supreme Court of New York

Mullane v. New York City Railway Co.

51 Misc. 24, 99 N.Y.S. 798

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1906

StatusPublished

This text of 51 Misc. 24 (Mullane 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

Mullane v. New York City Railway Co., 51 Misc. 24, 99 N.Y.S. 798 (N.Y. Ct. App. 1906).

Pincite

Opinion

McCall, J.

The plaintiff in this action, at six-thirty on the morning of Yovember 21, 1905, sotfght to become a passenger on one of the cars of defendant operated along its Second avenue line of route. She left her house, intending to go to the place of her employment, and at Sixty-fourth street and Second avenue signalled an approaching car bound downtown to stop. It did stop and, while she was endeavoring to board same and was in the position of having both her feet on the running board, some one, not the conductor of the car but one of a number of men whom she saw on the back platform, signalled the car to go ahead by pulling the bell and it started with the plaintiff in the position related. She remained in the same place till the

[25]*25car reached Sixty-third street, where, as she swears, she intended on the car stopping to go inside. At this- point, a block away from where she boarded the car, it slowed down and then started ahead again with a jerk which threw the men standing on the platform backwards, one of them falling against the plaintiff with such force as to loosen her hold and precipitate her to the street and against a pillar of the elevated railroad, and she suffered the injuries she complained of. From the time she boarded the car until she was thrown therefrom, no one had appeared to collect her fare and she had not paid it. While an endeavor was made to show that the reason she did not go inside the car between Sixty-fourth and Sixty-third street was because the car was moving, the inference is irresistible that the real reason was because the car was crowded and her way was blocked and she could not get in if she tried, for she says on cross-examination “ I knew I could not get in and I knew I would fall off if I did not hold onand when asked, “ How did you know you could not get in” the answer is, “Because the men were in my way. I tried to push my way through but nobody would move for me to get in;” and so, when asked still further, “Wasn’t it possible between Sixty-third and Sixty-fourth street for you to get on the platform of the car,” she replied, “Ho sir, I tried, the car was going too .fast, I tried to push one man aside but he didn’t seem to move or pay any heed to me.” Taking the story as told of the happening of this accident by the plaintiff herself, it establishes unquestioned negligence of the plaintiff, contributing to the happening thereof, by voluntarily placing herself in an exposed and dangerous position in the crowded state of the car when she got upon it. Tregear v. Dry Dock, etc., R. R. Co., 14 Abb. Pr. (N. S.) 49.

The judgment should be reversed and new trial ordered, with costs to appellant to abide the event.

Gildebsleeve, J., concurs; Levehtbitt, J., concurs in result.

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

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McCall, J.

The plaintiff in this action, at six-thirty on the morning of Yovember 21, 1905, sotfght to become a passenger on one of the cars of defendant operated along its Second avenue line of route. She left her house, intending to go to the place of her employment, and at Sixty-fourth street and Second avenue signalled an approaching car bound downtown to stop. It did stop and, while she was endeavoring to board same and was in the position of having both her feet on the running board, some one, not the conductor of the car but one of a number of men whom she saw on the back platform, signalled the car to go ahead by pulling the bell and it started with the plaintiff in the position related. She remained in the same place till the

[25]*25car reached Sixty-third street, where, as she swears, she intended on the car stopping to go inside. At this- point, a block away from where she boarded the car, it slowed down and then started ahead again with a jerk which threw the men standing on the platform backwards, one of them falling against the plaintiff with such force as to loosen her hold and precipitate her to the street and against a pillar of the elevated railroad, and she suffered the injuries she complained of. From the time she boarded the car until she was thrown therefrom, no one had appeared to collect her fare and she had not paid it. While an endeavor was made to show that the reason she did not go inside the car between Sixty-fourth and Sixty-third street was because the car was moving, the inference is irresistible that the real reason was because the car was crowded and her way was blocked and she could not get in if she tried, for she says on cross-examination “ I knew I could not get in and I knew I would fall off if I did not hold onand when asked, “ How did you know you could not get in” the answer is, “Because the men were in my way. I tried to push my way through but nobody would move for me to get in;” and so, when asked still further, “Wasn’t it possible between Sixty-third and Sixty-fourth street for you to get on the platform of the car,” she replied, “Ho sir, I tried, the car was going too .fast, I tried to push one man aside but he didn’t seem to move or pay any heed to me.” Taking the story as told of the happening of this accident by the plaintiff herself, it establishes unquestioned negligence of the plaintiff, contributing to the happening thereof, by voluntarily placing herself in an exposed and dangerous position in the crowded state of the car when she got upon it. Tregear v. Dry Dock, etc., R. R. Co., 14 Abb. Pr. (N. S.) 49.

The judgment should be reversed and new trial ordered, with costs to appellant to abide the event.

Gildebsleeve, J., concurs; Levehtbitt, J., concurs in result.

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

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Bluebook (online)

51 Misc. 24, 99 N.Y.S. 798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullane-v-new-york-city-railway-co-nyappterm-1906.