Reuter v. Brooklyn Heights Railroad ( 1910 )

Jenks, J.:

The negligence charged against the defendant is that it did not . afford to plaintiff as a passenger a reasonable opportunity to leave its car. . It appears that plaintiff with his family purposed to alight at or near a station in order to board a connecting train. The version of the plaintiff is that the car stopped, and, when he was attempting to alight from the running board, the car started up so that he was thrown off onto the ground. The witnesses for plaintiff as to the accident consisted of himself and his daughter. But the testimony of the latter is not clear in favor of the plaintiff. On her direct examination she testifies that the car stopped, and -that as her father “got ready to get off,” and'as lie went “to step down to finish' to get off ” the car jerked. On her cross-examination she says that two or three" passengers jumped off before her father’s-attempt, but the rest “ got .off after that;” that none' of them met with any mishap, and that the car was standing still when they alighted. -It is conceded that- the car made but one stop. Now the. conductor of the car and Hyman, apparently a disinterested witness, and the. transfer agent and starter,', testify that the plaintiff attempted -to leave the ear while it was moving slowly in.' the loop, and fell, and "that- the car did not come to a stop, until it thereafter had gone on about five feet. TJpon the record .the plaintiff did .not uphold the burden to prove that after the car had stopped he sought to ■ alight, and failed to do so in safety -because the car was started up unreasonably, for the preponderance of the evidence Indicates that he sought to alight just before the car came to a standstill, which would -indicate that if he had waited a moment he' might have alighted safely in common-with the other passengers.

The judgment should, therefore, be reversed.. and a new, trial should- be ordered, costs to abide the event. . 7 ■

Woodward and Garb, JJ.,. concurred; Thomas and -Rich, JJ., dissented. . ■

. Judgment and order "of the Municipal ■ Court reversed and new. trial ordered, costs to abide the-event. •