Adams v. New York City Railway Co. , 101 N.Y.S. 510 ( 1906 )

Scott, J. (concurring):

I concur on the ground that the proof as to the ¡happening of the accident did not conform to the allegation of the! complaint. The allegation is “that while the plaintiff was standing on the rear platform of said car waiting for said car to come to a full stop to permit him to alight therefrom, through the negligence and carelessness, of the motorman or of the conductor of said car, the- agents and • servants of the defendant, or of .both of them, said car was suddenly and violently started forward at great speed.” The plaintiff testifies that as the- car approached Forty-second street he proceeded' to the rear platform, .and waited, until, every- one else who wished to alight had done so; that the car never came to a full stop but moved slowly; that he stood on the rear plat- . form holding on with his right hand to an upright stanchion, turning up from-the platform; that the conductor'asked him if' he was1 going to get off, and he replied that he Was when the car ■ stopped. , Up to this point it is apparent that plaintiff was in a positian of comparative safety,, and that however milch it may have been a violation of defendant’s contractual obligation to plaintiff to refuse to bring the car to a full stop, it was not negligent to start-up the car, unless the starting' was accompanied with such .violence as to throw a man off the platform. Of such a violent start there is: no evidence, and, therefore, the negligence charged in the complaint was not proven. The plaintiff’s testimony as to just how the accident happened is to the effect that after he had spoken to the conductor, and while the car was still moving slowly, but had not come to a stop, he descended from the platform, placed his. left foot on the step and put the other one off, and while he was in this position the car was started forward. In other words, he says that while he was in the act of alighting the car was started up and threw him off. This is not the charge contained in the complaint. It may be that a cause of action might be predicated upon the testimony given by plaintiff at the trial, but not the cause of action alleged in the complaint. ' And even if it Avere possible to hold that the allegation and the proof conformed, there Avould-still be the difficulty arising from the absence of any proof that the conductor saw the plaintiff in the act of' alighting, or had reason, to expect that he would attempt to alight until- the car had come to a full stop, since the plaintiff’s declaration had been to-the contrary.