Opinion
March 4, 1910.
D.A. Marsh [ George D. Yeomans with him on the brief], for the appellant.
John E. Walker [ L. Victor Fleckles with him on the brief], for the respondent.
The plaintiff alleges that on the 25th day of June, 1905, she was a passenger upon one of defendant's trolley cars operated in Nostrand avenue in the borough of Brooklyn, "and having paid her fare, notified the conductor of the said car that she wished to alight at Myrtle avenue;" that "the said car came to a complete stop at the said corner of Nostrand Avenue and Myrtle Avenue and plaintiff did then endeavor to descend and alight upon the street from the said car, but that before she had fully so done the said car, by the act of defendant's servants, agents and employes, was suddenly started forward, and plaintiff as a result thereof was with great force and violence thrown to the ground." These allegations constituted her alleged cause of action, and it was incumbent, upon her to establish them by a fair preponderance of the evidence before she was entitled to recover. This she has failed to do. The record is barren of any evidence that she notified the conductor of the car, in any manner, that she wished or intended to get off at the corner of Nostrand and Myrtle avenues, or that the car had stopped at such corner when she attempted to alight. The evidence in her behalf is that before reaching Myrtle avenue a Lorimer street car ran in ahead of the car on which she was riding, at a point about a quarter of a block from its regular stopping place (which was a transfer station), which necessitated a momentary stop of the car on which she was a passenger; that when her car stopped, without giving any notice to the conductor or motorman, and without knowing where the conductor was, and with knowledge that the car upon which she was riding had not reached its regular stopping place, but had stopped because of the car ahead of it obstructing the track, she attempted to get off, and while she was doing so the car started and proceeded to its regular stopping place at the corner of the avenues, and there stopped; that by reason of such starting of the car she was thrown to the ground and injured. There is no evidence of any signal by the conductor to the motorman either to stop or start the car. This evidence fails to establish the cause of action alleged. ( Grabenstein v. Metropolitan Street R. Co., 84 N Y Supp. 261.) It is contended by the learned counsel for the appellant that the evidence was insufficient to establish the defendant's negligence or liability, in support of which contention he cites a number of cases in other departments. We are committed to the rule declared in Dean v. Third Avenue R.R. Co. ( 34 App. Div. 220), applied in Sexton v. Metropolitan Street R. Co. (40 id. 26) and reaffirmed in Bessenger v. Metropolitan Street R. Co. (79 id. 32) that "when a street surface car has come to a full standstill, reasonable care in its operation demands that it shall not be started without some effort on the part of the conductor or motorman to determine whether this may be done with safety to passengers or intending passengers, and that the question of negligence is one for the jury." The record shows that in this case, as in the Dean case, the conductor actually saw the plaintiff, for he testifies, "As I seen them getting off, I told her to wait till the car stopped, that we were surely coming to a stop as it was a transfer point. She deliberately put her foot down on the step and jumped off." I think that the defendant's motion to dismiss at the close of the plaintiff's case, and again at the close of the whole case, ought to have been granted.
The judgment and order must be reversed and a new trial ordered, costs to abide the event.
JENKS, BURR, THOMAS and CARR, JJ., concurred.
Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.