Rott v. Forty-Second St. & Grand St. Ferry R. R.

24 Jones & S. 151

• Court: The Superior Court of New York City
• Decided: June 20, 1888
• Status: Published

Opinion

Per Curiam.

The action was for damages from negligence alleged in the complaint. The plaintiff according to her own testimony and that of her daughter, accompanied her daughter into a car of defendant. The daughter testified that she told the conductor that the plaintiff was not a passenger, and the plaintiff turned and proceeded to leave the car. At a point when she was about to step from the platform down to the street, as she testified, the conductor, as she also testified, rang the bell. The car moved forward and the motion threw the plaintiff upon the street. At the end of the testimony, the learned judge thought that there was not enough testimony to justify the jury in finding that the conductor had any reason to think that the plaintiff did go upon the car as a passenger, or that he knew that she was proceeding to leave the car or intended to leave it, at the time he rang the bell.

The declaration to the conductor that the plaintiff was not a passenger, accompanied with circumstantial evidence such as the place where he stood, his field of vision there, the probability of the direction of his observation in the ordinary performance of his duty, made the case such that it should have been submitted to the jury.

The judgment is reversed and a new trial ordered, with costs to abide the event.