Olson v. Brooklyn Heights Railroad

133 A.D. 445, 117 N.Y.S. 611, 1909 N.Y. App. Div. LEXIS 2198

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1909
• Status: Published

Opinion

Gaynor, J.:

The plaintiff claimed, and produced testimony to show, that the car stopped on her signal to let her off, and that as she was stepping down it was started up and threw her off. The defendant claimed, and produced testimony, that the plaintiff stepped off the car before it had stopped at all, and that she was hurt in that way. The question litigated was whether the car stopped before she stepped off. The trial Judge charged that “ If the car stopped and the lady attempted to alight — if the car stopped on her signal and she endeavored to alight, and, as she was stepping down, the car started up again, then she. would be entitled to recover ”. It is claimed that this took from the jury the question whether the car was negligently started.

The question- is a troublesome one under the- decisions (Kellegher v. Forty-second St., etc., R. R. Co., 171 N. Y. 309; Woods v. N. Y. & Q. Co. R. Co., 128 App. Div. 235). ' But, really, was it error in this case to omit the word negligently ?• If the car stopped to let her off, was it not negligent as matter of law to start- it while she was in the act of stepping down ? , It seems to me it was. The case is. distinguishable from those cited, in that it comes down to the precise point whether the car started up while the plaintiff was stepping down, after having stopped to let her off. If some other question entered into the case, the charge might have been erroneous. Ho fact was shown on which a finding that the starting Was not premature and-negligent could rest, assuming that the ear was stopped to let lief off. ■ The judgment should be affirmed. .

Woodward, JV, concurred; Burr, J., concurred in the result; Jenks and Miller, JJ., dissented.

Judgment and order affirmed, with costs.