Schulz v. Second Avenue Railway Co. , 42 N.Y.S. 710 ( 1896 )

WILLIAMS, J.

The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The plaintiff was injured about midnight of the 23d day of August, 1891, at the corner of Fifth street and First avenue, in the city of New York, while alighting from one of the defendant’s street horse cars, upon which she had been riding with her father. The car was an open one, having side curtains, and on the night in question it was rainy and wet, and the curtains were down. The plaintiff’s theory of the accident at the trial was that the conductor stopped the car to permit these people to alight; that the plaintiff’s father got down-upon the ground, and then plaintiff started to get down, and when she was on the car steps, which, were wet and slippery, the car was started, causing her to slip, and fall upon the ground. At the time of the trial, which took place nearly five years after the accident, the plaintiff’s father was dead, the conductor of the car could not he found, the driver testified that he knew nothing of any accident having occurred, and no passengers upon the car were produced. The only witness as to what occurred, therefore, was the plaintiff herself, and the question is whether, upon her evidence, it was satisfactorily shown that there was negligence on the part of the defendant in starting the car while the plaintiff was alighting, and that negligence caused the plaintiff’s injuries. On the 5th of September, 1891,—about two weeks after the accident,—the plaintiff made a written statement, in which she said that the car was standing, and not moving, when she fell; that she did not know how she happened to fall; that she thought she must have slipped off the step of the car, as it was raining, and the car step was very wet; that the curtains of the car w¿>re hanging, and she could not see very well where she was stepping. Dr. Jersey testified at the trial that on the 11th of September, 1891, he examined the plaintiff, and she then told him that while leaving a car of the Second Avenue Line, which was standing still, she slipped and fell, because of the night being wet and damp, and the car step slippery; that he made a report at the time of the examination, which he produced at the trial. These statements, made soon after the accident, seemed to indicate that the plaintiff did not really know just how she happened to slip; that she did not then understand that it was the starting of the car that caused her to slip and fall. At the trial, nearly five years after the accident, she was called upon to detail the circumstances of the accident, and it seems to us that she gave no satisfactory account, allowing a negligent starting of the car, which was the cause of the accident and injuries. First she said, in reply to her own counsel, that she could not tell whether the conductor stopped the car. Then she said tin-car was getting in motion, and as she was getting out the car got in motion, and she fell; the car was started. Then she said the car was in motion, and as she was trying to get out the curtain was lifted on the side, and she slipped and fell down as the car was in motion. Then, in reply to the court, she said that the car was in motion as she was alighting to get out; it was moving as she was trying to get out; it had not stopped at all; that it stopped, and as she was trying to get out, it got in motion; the car was in motion; she could not tell whether it had stopped before that. Then, in answer to her counsel, she said the car stopped before she fell, and then it started up again, after that, just before she fell. A recess was then taken by the court, and after recess the plaintiff was again put upon the stand, and was asked by her counsel to tell what occurred in her own way, and she replied that her father, she thought, gave the signal to stop. As he was giving the signal to stop, the car stopped as she was getting out. Her father got out first. As her father got out first, he stepped out, and gave the signal, and as soon as he gave the signal he got out, the car got into motion, and she fell down. Then the court took the witness again, and examined her, and she said the car stopped before she started to get down, and then she tried to get down, and fell. As she was getting out, the car stopped. It was raining, and as she was getting out the car stopped, and she made a mistake. The car was slippery. It was raining, and as she was getting out she slipped. The car gave a jerk, and she fell down. As she was getting out, she slipped, and the car was in motion, and she fell. The court then directed counsel to try and make it plain, and plaintiff’s counsel thereupon started to question her, but the court took her away from the counsel, and examined her further as follows:

“Q. Did you slip before the car started off? A. I slipped. Q. You slipped first/ A. Yes, sir; as I was getting out of the car. It was in motion, and I fell. Q. Drop that ‘in motion.’ Don’t .tell us anything about it just now, because that bewilders you. Did the car stop before you slipped, or when you slipped, or did you slip at the same minute/ A. I slipped at the same minute.”

This closed plaintiff’s examination upon this subject. There was nothing brought out on the cross-examination in any way to clear up the story told by her on the direct. The burden of proving a negligent starting of the car while the plaintiff was alighting, and ■which starting caused plaintiff to fall, was upon the plaintiff. She was the interested party, and if she could not tell how the accident happened so clearly as to enable the jury to see that it was the starting of the car after it had stopped which caused her to slip and fall, she certainly should not have been permitted to recover upon any guess or speculation as to bow it occurred. Negligence should be satisfactorily established, in order to justify a finding of the fact. The plaintiff might well have slipped getting down from the car on such a night, though the defendant was guilty of no negligence. No presumption of negligence could arise from the fact that she did slip and fall. If she started to get down before the car stopped, and the stopping of the car caused her to slip and fall, no negligence of defendant could be found. She swore to just this, as already seen. If she started to get down before the car stopped, and while it was still in motion, and slipped and fell by reason of the car being in motion, no negligence of defendant could be found. She swore to just this, as already seen. If she could not state just how she happened to slip and fall, no negligence of defendant could be found. Only in the event that her slipping was caused by the starting of the car after it had stopped, and before she had gotten upon the ground, could negligence of the defendant be found which caused the injuries. This idea was at times vaguely suggested by her, but it does not seem to us her evidence was so clear and unequivocal as warranted the jury in finding the fact to be that the slipping and falling was the result of the defendant’s negligence in starting the car while she was alighting. It was not proper to allow the jurors to guess or speculate as to what the fact was, when the plaintiff at no part of her examination by her own counsel or by the court clearly and distinctly stated the fact as the jury was asked to find it. Jurors are too much inclined to favor women against a corporation, to allow them to find negligence upon doubtful and uncertain evidence. Plaintiff’s evidence was much more consistent with a finding for the defendant than for the plaintiff upon this issue of negligence. She several times, in the course of her examination, testified to facts negativing the idea that the starting of the car caused her injuries. It is very likely the plaintiff told the truth about the matter in her report and statement made in September, 1891, shortly after the accident. We do not see how the finding of negligence can be sustained upon her evidence here at all.

We think the judgment and order appealed from should be reversed, and a new trial should be granted, with costs to appellant to abide event.

VAN BRUNT, P. J., and BARRETT, J., concur.