Gatens v. Metropolitan Street Railway Co. , 85 N.Y.S. 967 ( 1903 )

Woodward, J. (dissenting):

I cannot concur in the affirmance of this judgment. The plaintiff’s theory is that the defendant was negligent in the operation of its street surface electric car in striking a curve with such violence as to throw him from the rear platform. The plaintiff, with a friend,- was standing upon the rear platform of the defendant’s car as it approached Fifteenth street on Fourth avenue in the borough of Manhattan. He was standing with his back to the motorman, looking toward the rear of the car, and his friend stood facing him with his arm thrown around the upright standard which supports the projecting roof of the car. They were both near the end of the platform, and the plaintiff testifies that his hands were behind ■ him, grasping the handrail or rods which protect the windows of closed cars; that he did not know that this curve was in the" road, though he admitted that he was aware of the fact that curves were common to street surface railroads and that the car was going fast when it struck this curve and that he was thrown out into the street, sustaining the injuries for which he seeks recovery. His testimony is that “ the car was going as fast as it had been going on the straight rail from 23d Street; when it struck the curve it did not slacken up at all. The car was going fast as it approached this curve.” The plaintiff’s witness Maguire, his friend, testifies that “ the car was going very fast as it approached this curve at 15th Street. It did not slacken speed at all.” This is the only evidence as to the negligence of the defendant in the operation of the car. What does the plaintiff’s witness mean by going “ very fast % ” The term is entirely relative. An express train is going very fast when it is running fifty or sixty miles an hour; five or six miles an hour would be very fast for a canal boat, but comparatively slow for an electric street car, and the defendant’s motorman testified without contradiction that the car was running about four miles an hour on the straight rail as lie approached Seventeenth street, and that the usual rate of speed on this line, on the straight rail, is about six miles per hour: This is the highest rate of speed which there is any evidence to support, and the testimony of defendant’s motorman is uncontradicted that he turned off his power and applied the brake ten feet before reaching the curve, so that the situation is presented of a car approaching a long curve at a speed of not over six miles an hour with the current entirely turned off and the brake applied, so that, as the motorman testified : “ I just let the car roll when I turned all my power off,” indicating that the. car struck the curve only with the momentum it had gained while running at not to exceed six miles per hour. More than this, the evidence indicates that the car was passing up grade, for the motorman testified that “ I was going up till I got within ten feet of 15th Street, with my full power on,” and if this was the case there would be no doubt that the speed of the car must have been materially lessened before it touched the curve. However this may have been, there is. absolutely no evidence that the car' was going faster than its regular' speed at this point; no evidence that it was running more than six miles an. hour" as it approached the curve, and the defendant’s evidence is undisputed that the current was turned off and the brakes applied, so that the" car could not have struck this curve with the momentum of the car aided by the tractive force of the electric current even at the rate of six miles an hour. Defendant’s witness, William Willan, who was employed in the park at ■ this point, and who testified that he had' seen hundreds and . thousands of cars pass this curve, says that “ As the car went around, and as this accident happened, I did not .notice anything unusual in the speed of the car; the car was at a regular rate of speed; I think it slowed up going round that curve, because they all do ; I noticed that in that part, for years. I have seen cars go around there frequently before — hundreds and thousands of times. There was nothing in the speed of this car and the way it went around that seemed unusual, other than that which I had seen there again and again.” This witness saw the accident at a distance of fifteen or twenty feet, and his evidence corroborates that of the motorman as to the speed of the car; that it was the • usual speed; nothing to indicate that it was anything different from that of every other car which passed over this curve; Where, then, is the basis for defendant’s negligence ? The mere fact that an accident happens is not proof of negligence, and where the car is shown without contradiction to have been operated in the usual and customary manner, where long experience has demonstrated the safety of such operation, it is difficult to understand how a jury may properly be permitted to speculate upon the probabilities of. negligence. There was no evidence that any one else had ever been thrown off or injured at this point, and, as was said in the case of Ayers v. Rochester Railway Co. (156 N. Y. 104,108) : “ It would be a very harsh rule that would hold a company liable for a possible injury resulting while passing, at a proper speed, over a curve that has long been in use and where no accidents are shown to have happened.”

The complaint does not allege any specific act' of negligence; after the formal allegations in reference to the corporation and the presence of its tracks, it is averred “ that there was at said time a bend or curve in the tracks of said road, on said Fourth Avenue, at or near Fifteenth Street.” There is no suggestion that this was a dangerous curve,, or that the defendant had any reason to expect that persons in the exercise of reasonable care, while occupying the platform, would be thrown off and injured, or that any one had ever been injured at this point, although it is a matter of common knowledge that a large portion of the travelers upon the street surface railroads do occupy the platforms. The next paragraph of the complaint alleges the presence of thé plaintiff upon the car, the payment of his fare, and “ that while on said car, and while the same was traveling along said Fourth Avenue, and when it reached a bend or curve in the track > at or near Fifteenth Street, the plaintiff was violently thrown from said car to the street.” The next paragraph alleges the injuries, and the 4th paragraph alleges that “the accident and injuries aforesaid were caused solely by and through the negligence of the defendant, its agents and servants.” These are the only averments of the complaint in any way relating to the question of negligence, and the evidence does not suggest that there was any duty on the part of the defendant to give a warning, or that the curve was of such an abrupt or dangerous character as to impose this duty on the defendant. The casé apparently proceeded upon the 'theory that the mere fact that the plaintiff was thrown off was sufficient to charge the defendant with negligence, while in my view of the case it was necessary that the plaintiff should allege and prove the specific facts on which negligence was to be predicated. This curve had been in existence, and the defendant had operated cars over it for some tirhe; for time enough so that one of the witnesses testifies, and he is un contradicted, that he had seen hundreds and thousands of cars pass dyer this curve, and there is not a particle of evidence to show that the car was not operated in the usual and customary manner, or that this experience had ever developed any fact which was calculated to give the defendant notice that it owed a duty to give a special warning, or to take any greater precautions than were taken on this particular occasion. Experience is the test in cases of this character, and when experience had demonstrated- that cars could be run with safety at the rate of speed at which this car was moving, and under thé circñmstances disclosed by the evidence, it was not negligent for the .defendant to omit those special warnings or other precautions which may be suggested after the accident has occurred. As a general proposition, the way established by long experience of doing a thing is, in law, the safe and prudent way of doing that thing.

(Nelson v. Lehigh Valley R. R. Co., 25 App. Div. 535, 541, and authorities there cited.) The evidence in this case is undisputed that the car was operated in the customary and usual manner, and no one suggests that any accident had ever before occurred at that point under similar circumstances. The Nelson case, on a subsequent appeal, was affirmed (37 App. Div. 631; 165 N. Y. 635), and I think the law is well settled upon this point.

While there is some conflict in the evidence as to the number of people inside of the car, the plaintiff’s witnesses testifying that all of the seats were full, with some standing in the aisle, there is no. evidence that there was not room enough to stand inside of the car as well as .upon the platform, and where a passenger voluntarily occupies a place on the platform, it is but fair and reasonable that' the person so riding should assume the risk ordinarily incident to such a position from the jolts and jars of the moving car, the unevenness of the tracks and the turning of curves, and not increase the responsibility of the carrier for his safety, (Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13, 15 ; affd.,, 164 N. Y. 586.) In other words, where a person with an equal opportunity to ride inside of the car takes his place upon the platform, the corporation owes him no higher duty than it would if he occupied the place provided -for his use, and if the experiences of the defendant were such as to justify the method of operation around this curve without warning to those standing inside of the car, it would seem that it was not bound to give notice to those-voluntarily occupying the -platform, particularly. where this same experience had demonstrated that there was no reason to expect that persons in the use of ordinary care would fall off.

This is the doctrine held by the majority of this court in the case of Vogler v. Central Crosstown R. R. Co. (83 App. Div. 101), and I see no reason for changing the conclusion which we then reached, that, it was not negligent for a street surface railroad to operate its cars over curves in the usual and customary manner, even though the evidence of plaintiff’s witnesses should characterize the speed in forcible language. If the operation of the defendant’s cars in the usual and customary manner is not negligent, the evidence in this case does, not establish a cause of action, and the judgment should be reversed..

Judgment and order affirmed, with costs.