Nichols v. City of New Rochelle

Woodward, J.:

The plaintiff, who was a conductor on one of the trolley cars of the Westchester Electric Railway Company, was injured by coming in contact with the planks and timbers used in shoring up a sewer trench in course of construction in one of the public streets of the defendant, and by being thrown from his position on the running board of the trolley car to the bottom of the said trench, some twenty feet below the street surface. The case was tried before a jury and duly submitted to that tribunal, resulting in a verdict for the plaintiff. Thereupon the learned court, passing upon a motion which had been reserved by agreement until after the verdict, set aside the same and made an order directing a verdict in favor of the defendant. The plaintiff appeals from the judgment.

-It appears that the defendant had entered into a contract with one Molloy for the construction of a sewer, and that the latter for some reason had temporarily abandoned the work, leaving the sewer trench, some twenty feet in depth, open during a period of several months, in 1902. This trench was shored up with timbers and planking, which extended above the street surface from four to five feet, and, at the point where this accident occurred, this planking was so near to the line of the single-track street surface railroad of the Westchester Electric Railway Company that the running board of the open cars touched in places. The plaintiff was employed by the railway company as a conductor, operating an open car over a short piece of road, and it appears that he had been put at work upon this particular line at about eleven o’clock in the evening, and had made several round trips over the line at the time of the accident, which occurred about one o’clock in the morning of June 11,. 1902. Plaintiff’s trip began at Huguenot and Mechanic streets, and ' ran north along North avenue, the scene of the accident, to Fifth avenue. He had made two round trips, and was on his way back on the third trip. The car stopped and took on three passengers. Plaintiff stepped down on the running board and walked to one of the passengers, who paid the three fares. The plaintiff inade the change, and started to reach for the strap or cord which is used to operate the register, when he came in contact with the planking aboye described and was pushed off the car and fell into the trench, receiving the injuries for which he seeks recovery. In submitting the case to the jury, the court limited the defendant’s negligence to the question of whether there were lights displayed upon the planking, or in such a position as to give warning of the danger, and upon this issue the jury found in favor of the plaintiff. But, upon disposing of the motion for the direction of a verdict for the defendant, the learned court appears to have held in substance that the plaintiff was guilty of negligence contributing to the accident in occupying a place upon the running board, in view of the fact that the planking was there, and that the plaintiff must have known of the fact, or been charged with the duty of knowing it.

We are of opinion that, while the court might have been justified in setting aside the verdict, the case did not warrant the direction of a verdict, thus effectually disposing of the case upon the merits. The plaintiff was entitled to the verdict of a jury upon the issues presented by the evidence, and the mere fact that the learned justice presiding did not believe the evidence of the plaintiff is not a sufficient reason for conclusively determining the controversy in favor of the defendant. The plaintiff testified that he went to work upon this line at eleven o’clock in the evening; that he did not know of the existence of this sewer trench, with its projecting planking, and while it might seem unlikely that a man would pass over this short line five times within two hours, in an open car, lighted in the usual manner, without becoming aware of the existence of this obstruction, yet when we consider the situation fully, it can 'hardly be said as a matter of law that he did know it or that he was bound to know. The evidence shows that the night was dark and foggy; there was nothing in the circumstances making it the duty of the plaintiff, the conductor of the car, to make observations as to the condition of the highway. That was a duty which was intrusted to the motorman. It was the duty of the plaintiff to give the signals for the starting and stopping of the car and to collect the fares. "This was a single-track railroad; the evidence shows that there were few, if. any, passengers during the time that the plaintiff' was engaged in making these runs, and if he had occasion to collect any fares the chances were practically equal that he would make use of the running board on the opposite side from that where this obstruction existed and looking through the lighted car his vision might be limited to such an extent that he would not observe the planks, or, if .he did, he might not realize that they were near the car or that they were permanently in position. To declare the-plaintiff’s testimony false because it does not seem entirely reasonable is the province of the jury rather than of the court, and the jury appears to have accepted the plaintiff’s story. . Of course, if the danger was known and obvious, and the plaintiff was in a position to have the fact in mind, he would not be entitled to recover, but he was engaged in collecting fares in the manner customary on single-track railroads operating open cars, and he had á right to assume that the highway had not been made unsafe by the acts of the defendant. He says he did not know of the obstruction; he owed no duty of knowing the fact unless it was entirely obvious, and when we consider that he was at work between eleven o’clock in the evening and one o’clock in the morning upon a line with which he was not familiar, that the night was dark and foggy, and that it does not appear ‘that there was anything to call his attention particularly to matters outside of the car, we cannot fail to believe that it was error to direct a verdict for the defendant.

The judgment appealed from should be reversed and the verdict for the plaintiff should be reinstated, with costs.

Hirschberg, P. J., Bartlett and Hooker, JJ., concurred; Jenks, J., read for affirmance.