Opinion
November 27, 1908.
Howard A. Sperry, for the appellant.
Francis R. Stoddard, Jr. [ D.A. Marsh and George D. Yeomans, with him on the brief], for the respondent.
The plaintiff sues the defendant, an electric street surface railroad corporation, for its negligence in starting its car before she gained a seat in it. She was dismissed at the close of her case. After testifying that she got into the closed car the plaintiff continued: "I could not have been very far in the car, I just passed the door, then I started to go and the car started and I braced myself on my right foot, waited a couple of minutes, and then thinking everything was all right, I started again — it gave a terrific jolt and threw me and I braced on my left foot, and with that something snapped in the inside of my left knee. * * * It jerked me. I did not fall at all. I caught the nearest thing, one of the chairs." I think that the jury could infer properly from this testimony that the injury to the plaintiff was due to the fact that the car was started before she had gained a seat. At the time of the alleged jolt she was still in the act of seeking a seat, and the jury could conclude that her wait was due to the fact that the car had been started prematurely and was incidental to her progress towards the seat. I think that the fact that the witness testified that she waited "a couple of minutes" was not necessarily to be taken as a statement that she desisted for 120 seconds in the act of seeking the seat. We all know well that it is common parlance to describe the briefest space of time — a second or a few seconds — by some such expression as "a minute" or "a few minutes." "Loosely," a minute is "a short space of time." (Century Dictionary.) I think under the rule of Dochtermann v. Brooklyn Heights R.R. Co. ( 32 App. Div. 13; affd., 164 N.Y. 586), stated by CULLEN, J., and adopted by us in Morrow v. Brooklyn Heights R.R. Co. ( 119 App. Div. 22), that the plaintiff should not have been nonsuited. That rule is as follows: "But assuming that the liability in the operation of electric cars is no greater than that of horse cars, I am still of opinion that, considering the frequency of the occurrence of such accidents, the jury might properly find that it was want of even ordinary care to start the car until a woman had obtained her seat, whatever may be the rule when the passenger is a man." (See Morrow v. Brooklyn Heights R.R. Co., supra, and cases cited.)
I advise that the judgment be reversed and a new trial be granted, costs to abide the event.
HOOKER and MILLER, JJ., concurred; GAYNOR, J., concurred in separate opinion; WOODWARD, J., dissented.
I am not willing to concur in the suggestion that it may have been negligent to start the car before the plaintiff was seated. The universal practice with stages and cars, here and abroad, is to start them before the passenger is seated. A contrary practice would be an interruption of travel which the community could not and should not tolerate. I vote to reverse on the ground of the "terrific" jolt. As little as we believe that it happened, it was for the jury to say.
Judgment reversed and new trial granted, costs to abide the event.