Gatens v. Metropolitan Street Railway Co.

Hirschberg, J.:

The judgment recovered by the plaintiff is for damages because of personal injuries sustained by him on being thrown from the rear platform of one of the defendant’s cars while rounding a curve on Fourth avenue at or near Fifteenth street in the borough of Manhattan. He testified that the car was crowded inside, all the seats and standing room being occupied, and that the conductor made no-objection to his standing upon the platform, but on the contrary collected his fare there. He did not know of the existence- of the curve, but was standing at the time with his back to the body of the car, holding on by the handrail. The car was going very fast as it approached the curve, and without any slackening of speed struck the curve very forcibly, breaking his hold upon the handrail and throwing him so violently into the street that he remained unconscious for a considerable period of time after he was taken to-a hospital.

The plaintiff’s version of the occurrence was corroborated by a companion who testified that the car was going very fast as it. approached the curve, and that it did not slacken its speed at all. This companion further testified to the fact that he had his arm around a stanchion and managed to hold on as the car rounded the curve although he was thrown towards the door of the car by the impetus..

As against this evidence the motorman testified that he had reduced the speed of the car at the curve to one-half, in accordance with a rule of the company, and another witness for the defendant testified that the car was going at that point at a regular rate of speed, adding, “ I think it slowed up going round that curve, because they all do.” The conductor-testified that the car was behind time; that he was standing in the car collecting fares at the time of the- . accident, and that up to that time the* car was going at the usual rate.

That the car went around the curve at a sufficient rate of speed to throw the plaintiff off, and that it did in fact throw him off notwithstanding his efforts to hold fast by the. handrail is undisputed. Ho evidence was given tending to show that the plaintiff received any warning of the approach of the curve, the defense being predicated mainly upon the evidence of the conductor, to the effect that, there was room inside of the car at the time, and that there were, even vacant seats. The case was submitted to the jury in a charge-very favorable to the defendant, to which charge the defendant took no material exception, -and the verdict must be deemed to establish in the plaintiff’s favor such facts as were in dispute. ,

Assuming, as the jury has found, that there was no room for the: plaintiff inside the car, the defendant on accepting him as a platform passenger certainly owed him the duty of transporting him in such a manner as to render his position on the platform reasonably safe,, and it cannot be said that there was no evidence which would justify a jury in concluding that that duty was neglected. If the jury-believed the evidence of the plaintiff and his companion that the. car approached the curve at a high rate of sjieed which was not, reduced in going around it, then they would be entitled to find that, the motorman negligently violated the rule of the company, which, required him to reduce the rate one-half at that point, and this finding alone would be sufficient to support the claim of negligence.

The question of the liability of the defendant under circumstances similar to those herein presented has been recently considered by the writer,, and the cases collated in Sheeron v. Coney Island B. R. R. Co. (89 App. Div. 338), and in the dissenting opinion in Moskowitz v. Brooklyn Heights R. R. Co. (89 App. Div. 425). The numerous authorities need not be repeated here. They seem to be quite uniform in holding that the passenger who has been accepted as such upon the platform of a crowded car may assume that it is a reasonably safe place to ride, and that the. transportation company owes him the duty of guarding his person! from danger, at least in so far as ordinary care will accomplish that-result. Many of the authorities enjoin' the exercise of great care in the preservation of the .safety of such a passenger, and some, require the exercise of extraordinary care, but in most of them, stress is laid upon the obligation of giving some warning to the passenger thus dangerously situated before exposing him to the peril of an unknown curve in the road. Thus, in Wilder v. Metropolitan-Street R. Co. (10 App. Div. 364) this court said, through Mr. Justice Bradley (p. 367) : “ But if warning to passengers in the car-was reasonably necessary for their protection or safety, it, was the. duty of the defendant to give them the benefit of it.” In Lucas v. Metropolitan Street R. Co. (56 App. Div. 405) the court said (p. 407): The defendant having permitted the plaintiff to go upon its car and taken his fare, obligated itself to exercise extraordinary care to transport him to the point of his destination without injury. It could not expose him to unreasonable danger, even though he stood upon the platform of the car. (Graham v. Memhattan R. Co., 149 N. Y. 336.) When it was about to run its ear around the curve at the speed set out in the record, it owed the plaintiff $ duty [of informing him of that fact, or indicating to him in some way that he must exercise at that point increased care for his own safety. This, the verdict of the jury establishes that the defendant did not do, and the failure to perform this duty, the plaintiff being free from negligence, renders it liable. (Dillon v. Forty-second St. R. Co., 28 App. Div. 404; Schaefers. Union R. Co., 29 id. 262; Lansing v. Coney Island & B. R. R. Co., 16 id. 146.) ” In Schaefer v. Union R. Co. (29 App. Div. 261) the court said (p. 263): “ That the car was permitted to go down the incline at a very high rate of speed; that it was crowded with passengers inside and out; that while going at that rate of speed it struck this curve; that the passengers had no warning of the approach of the curve, and that the car lurched so that several passengers besides the plaintiff were thrown down, was established by the evidence and might have been found by the jury. Upon those facts the jury might well have predicated negligence on the part of the defendant.” In Graham v. Manhattan R. Co. (149 N. Y. 336) the Court of Appeals stated the rule applicable to this class of cases to be that where a person is taken upon a train for transportation upon a platform as a passenger, the company was “ bound to exercise a high degree of care to make the platform safe for his occupation, and he was entitled to assume that it would" The court added (p. 342) : “ Even if the plaintiff assumed the ordinary risk which attended riding upon the platform, he had a right to assume that the defendant’s servants would cause no unreasonable disturbance of the crowd, and that the, cars were so constructed as not to render his position dangerous from their proximity to each other in passing over any portion of the road, or at least if such danger existed that he would he apprised of it"

"The rule which requires that a passenger who is permitted by a common carrier to occupy a dangerous place for hire to be notified that he is approaching a part of the road where an unusual effort on his part will be required to avert peril which is unknown to him, is a salutary one, and many other cases than those referred to might be cited in its support. If no such obligation existed a very large number of the patrons of the transportation companies in the city of New York would be exposed to constant danger, and the condition would be fulfilled which Mr. Justice Cullen reprobated in Dochtermcmn v. Brooklyn Heights R. R. Co. (32 App. Div. 13, 15), viz., “ that a carrier * * * may successfully assert that in the usual and proper management of its road a passenger must necessarily and ordinarily risk the safety of his body and bones.”

The appeal presents no other question than the sufficiency of the evidence, and it follows that the judgment should be affirmed.

Goodrich, P. J., and Hooker, J., concurred; Jenks, J., concurred in result; Woodward, J., read for reversal.