Opinion
December, 1913.
Morris Samuel Meyers (Herman Druck and Samuel Meyers, of counsel), for appellant.
James L. Quackenbush (Bayard H. Ames and Walter Henry Wood, of counsel), for respondent.
The allegations of the complaint, so far as material to the questions under discussion, are as follows:
" Second. That on or about the 15th day of March, 1911, the plaintiff was a passenger for hire on one of defendant's cars upon said Second Avenue Elevated Railroad. That at or near the 80th Street station of said elevated railroad defendant, its agents or servants negligently, carelessly and violently stopped said car upon which said plaintiff was riding so as to throw plaintiff in such a manner that plaintiff's left foot was caught between the car upon which plaintiff was riding and the car following and coupled thereto.
" Third. That solely by the aforesaid negligence of the defendant, its agents or servants, and without fault or negligence on plaintiff's part, the plaintiff was negligently, carelessly and violently thrown against the railing of said car and his foot was caught and crushed between the bumpers of the car upon which plaintiff was riding and the car following and coupled thereto, whereby plaintiff was injured."
The evidence given on behalf of plaintiff was substantially as follows: That on March 15, 1911, he paid his fare at the Ninety-ninth street and Second avenue elevated station and there boarded a car of a downtown train; and there were other people standing on the platform of said car, about ten in number, and that he remained on the platform of said car until the train was about to reach the Eightieth street station, when there was a sudden stop of the train. That at the time of his sudden stop, he held onto the stanchion, but, notwithstanding, it threw him toward the next car and his left foot went into the space between the two cars.
It must be assumed that the evidence given by plaintiff was true and plaintiff was entitled to all proper and legitimate inferences to be drawn therefrom. Kraus v. Birnbaum, 200 N.Y. 130.
If the train operated by defendant's servants was stopped so suddenly and violently as to throw the passengers down or against any portions of the car and such violent or sudden stop was not necessary to the successful operation of the car, the jury would have been justified in finding the defendant guilty of negligence. See Hassen v. Nassau Electric R.R. Co., 34 A.D. 71, and cases there cited.
There was, we think, sufficient evidence to go to the jury upon this question. The evidence would probably have been much stronger had the court not, as we think erroneously, excluded the testimony of the witness Mintz and the plaintiff upon this subject.
The fact that plaintiff was riding upon the platform did not of itself constitute contributory negligence. Edwards v. New Jersey H.R.R. F. Co., 144 A.D. 555. If the car was crowded and the plaintiff remained upon the platform without objection by the guard in charge of the train, it was not contributory negligence. The evidence showed that the car was crowded and fails to disclose any warning or objection upon the part of the guard. Cattano v. Metropolitan St. Ry. Co., 173 N.Y. 565; Hassen v. Nassau Electric R.R. Co., supra.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
LEHMAN and PAGE, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.