Opinion
November, 1900.
H.A. Robinson (John T. Little, of counsel), for appellant.
M.D. Steuer, for respondent.
There was sufficient evidence to justify the jury in finding that the car was standing still when the plaintiff attempted to board it; that the conductor knew at the time that the truck was standing close to the track; and that the car was started before the plaintiff had reached the platform, being impeded by the other passengers who boarded the car just ahead of him. The conductor testifies that he saw two or three men attempting to board the car at once, and under these circumstances, knowing as he did the position of the truck, he should not have started the car until the plaintiff had safely boarded it. Moylan v. Second Ave. R.R. Co., 128 N.Y. 583, differs materially as to its facts from the present case. There the plaintiff boarded the car while it was still moving, and when it was within six or seven feet of the wagon which he struck. It did not appear that the conductor had any knowledge of the position of the wagon. In Caspers v. Dry Dock, E.B. B.R.R. Co., 22 A.D. 156, the plaintiff remained standing on the foot board unnecessarily until he was hit by a truck standing near the track. There was nothing, as he himself testified, to prevent his entering the car if he had chosen to do so. In the present case the plaintiff was unable to get upon the platform. The charge was as favorable to the defendant as it had the right to ask, and there was evidence upon which the jury might properly find as it did, that the defendant had been guilty of negligence and the plaintiff free from contributory negligence.
Present: TRUAX, P.J.; SCOTT and DUGRO, JJ.
Judgment affirmed, with costs.