Adams v. Metropolitan St. Ry. Co. ( 1904 )

INGRAHAM, J.

On the night of November 3, 1901, the plaintiff, with her sister-in-law, boarded one of the defendant’s cars at Ninth avenue and Fifty-Ninth street. The plaintiff testified that as the car approached Sixty-Seventh street she raised her hand to the conductor to stop the car; that the conductor rang the bell, and the plaintiff walked to the back door of the car, and waited there until the car stopped; that when the car stopped she opened the door and walked out on the platform, and put her left foot down into the street, when the car gave a sudden lurch, and she fell on her left side and was injured. The plaintiff’s sister-in-law, who was with her at the time, testified that the car was coming to a stop; that the plaintiff put her foot on the step to get off, and she made the attempt to get off, when the conductor pulled the bell too quick, and the car started, and the plaintiff was thrown to the street; that the car was going when the plaintiff attempted to step off, and did not stop until it got to Sixty-Eighth street. When asked to describe just what the car did, she said that the plaintiff—

“Was waiting for the car to stop. And then, of course, when he pulled the bell he didn’t stop the car right away, and I had to pull it. I had to make the motion for him to stop the car. And then, of course, she went to get off, and I—and I— She went off, and then he pulled the bell too soon before we had got off; and then, of course, she stepped off, and he pulled the bell again, and I tried to keep on the car until it got to Sixty-Eighth street.”

The court asked the witness, "At that time, when your sister, the plaintiff, tried to step off the car, had the car come to a stop?” to which the witness answered, “No. sir.”

The plaintiff also called as witnesses two persons who were in the street at the time. The first witness testified that the car stopped, and shortly afterwards went on; that he was somewhat hazy about it; that his attention was attracted to the plaintiff in the street; and that he did not pay any more attention to the car. Upon cross-examination he testified:

“I can’t testify it came to a stop. I think it did. I didn’t see the plaintiff fall. I don’t know where the car stopped after that. I have vague recollection about the car, but I can’t testify as to it.”

The other person who was upon the street testified that he was with the last witness at the time of the accident; that he thought the car was moving uptown the time he first saw it; that his attention was attracted to a woman falling in the street, and he went to her and helped her into a drug store; that he did not remember whether the car was moving or not.

The motorman of the car testified that he received the signal to stop at Sixty-Sixth street; that, as he approached the north crossing of Sixty-Seventh street, he received three bells to stop; that he was bringing his car to a stop at the time, and put on the brake to make a quick stop; that between the time he left Sixty-Sixth street and the time" he stopped, after receiving the three bells, he did not stop at all. A passenger in the car was called by the defendant, and testified that he was standing on the back platform and saw the accident; that the car was slowing down, when he heard a shriek,- and saw that the plaintiff had fallen, and after the plaintiff fell the plaintiff’s sister-in-law came out on the platform and attempted to get off the moving car, when the witness took hold of her and held her back until the car stopped.

I do not think that this verdict can be sustained. The only person who testified that the car had come to a stop was the plaintiff. The plaintiff’s sister-in-law testified again and again that the car was moving when the plaintiff attempted to get off, and her evidence was corroborated by all the other witnesses who testified upon the subject, and it is quite apparent that the plaintiff was mistaken when she said that the car had stopped when she atfempted to get off.

I think that the verdict is against the weight of evidence, and the judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.