Victorson v. Interborough Rapid Transit Co.

Appellate Terms of the Supreme Court of New York

Victorson v. Interborough Rapid Transit Co.

137 N.Y.S. 860

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 8, 1912

StatusPublished

This text of 137 N.Y.S. 860 (Victorson v. Interborough Rapid Transit 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

Victorson v. Interborough Rapid Transit Co., 137 N.Y.S. 860 (N.Y. Ct. App. 1912).

Pincite

Opinion

SEABURY, J.

This is an action to recover damages for personal injuries. Plaintiff was a passenger upon one of the defendant’s cars, and claimed to have been injured by a fellow passenger, who, she claimed, jumped over the closed gate of the car at the ■defendant’s station at Twenty-Third street.

[1] The contention of the plaintiff is that, when this fellow passenger jumped over the gate, he struck her upon the left shoulder and arm, from which she claims to have suffered injuries, for which she seeks to recover in this action. The plaintiff seeks to hold the defendant for this accident upon the theory that the guard in the defendant’s employ did not prevent the fellow passenger of the plaintiff from jumping over the gate. There is no evidence in the record to show that the defendant’s servant had any reason to anticipate that the plaintiff’s fellow passenger would attempt to jump over the closed gate, or that he saw the occurrence, or that it was within his power to prevent it. Under these circumstances, it seems to us that the evidence is insufficient to charge the defendant with negligence.

[2] We think, also, that the learned court below erred in charging the jury that the defendant was under the duty to carry the plaintiff safely. This charge held the defendant to be the insurer ■of the plaintiff’s safety, and withdrew from the jury the question ■of the defendant’s negligence. To this charge the defendant duly ■excepted. The learned court below also erred in refusing to charge the jury, as requested by the defendant:

“That if they find that the act of this passenger in jumping over the gate ■could not reasonably have been anticipated, then their verdict must be for the defendant.”

We think the defendant was entitled to this charge, and that the failure of the court to so charge was prejudicial to the rights ■of the defendant. The record carries the burden of other errors, which, as the judgment must be reversed for. the reasons stated, it it unnecessary to comment upon.

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

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SEABURY, J.

This is an action to recover damages for personal injuries. Plaintiff was a passenger upon one of the defendant’s cars, and claimed to have been injured by a fellow passenger, who, she claimed, jumped over the closed gate of the car at the ■defendant’s station at Twenty-Third street.

[1] The contention of the plaintiff is that, when this fellow passenger jumped over the gate, he struck her upon the left shoulder and arm, from which she claims to have suffered injuries, for which she seeks to recover in this action. The plaintiff seeks to hold the defendant for this accident upon the theory that the guard in the defendant’s employ did not prevent the fellow passenger of the plaintiff from jumping over the gate. There is no evidence in the record to show that the defendant’s servant had any reason to anticipate that the plaintiff’s fellow passenger would attempt to jump over the closed gate, or that he saw the occurrence, or that it was within his power to prevent it. Under these circumstances, it seems to us that the evidence is insufficient to charge the defendant with negligence.

[2] We think, also, that the learned court below erred in charging the jury that the defendant was under the duty to carry the plaintiff safely. This charge held the defendant to be the insurer ■of the plaintiff’s safety, and withdrew from the jury the question ■of the defendant’s negligence. To this charge the defendant duly ■excepted. The learned court below also erred in refusing to charge the jury, as requested by the defendant:

“That if they find that the act of this passenger in jumping over the gate ■could not reasonably have been anticipated, then their verdict must be for the defendant.”

We think the defendant was entitled to this charge, and that the failure of the court to so charge was prejudicial to the rights ■of the defendant. The record carries the burden of other errors, which, as the judgment must be reversed for. the reasons stated, it it unnecessary to comment upon.

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

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Bluebook (online)

137 N.Y.S. 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/victorson-v-interborough-rapid-transit-co-nyappterm-1912.