Bachmann v. Union Railway Co. ( 1908 )

GILDERSLEEVE, P. J.

The plaintiff was a passenger on defendant’s closed car. As the car was approaching the corner of Brook avenue and 138th street, he signaled to the conductor that he wished to alight at the said corner. The conductor nodded his head, and plaintiff went onto the platform and then stood on the step, waiting for the car to reach said corner. He had one foot on the step and was swinging his other foot in the air, while his hand was on the rail on the body of the car. The car was then going very slowly. Before it had reached the corner the car suddenly accelerated its speed, and plaintiff was thrown off and injured. The jury gave him a verdict for $650. Defendant appeals.

While there is evidence that plaintiff signaled to the conductor, there is no proof whatever that the conductor communicated the signal to the motorman, or that the latter slowed up his car for the purpose of allowing plaintiff to alight. The mere fact that the car was going slow is not necessarily an indication that the motorman knew of plaintiff’s wish to get off the car, as it will be remembered that the accident occurred while the car was between blocks, and not at the corner where plaintiff desired to alight. The slowing down of the car may well have been to avoid collision with some vehicle or pedestrian, in accordance with defendant’s duty to exercise proper care in the running of its cars, and of itself cannot be taken as a notice to plaintiff of an inten- _ tian to stop the car in order to allow plaintiff to alight; nor is there' any indication that the acceleration of speed was in response to any signal of the conductor, or with knowledge on the part of the motorman of plaintiff’s wish to alight. It is quite reasonable to suppose that, if plaintiff had waited in a safe position until the car had reached the corner, the car would have been stopped by the motorman, in response to a timely signal from the conductor, and plaintiff would have alighted without accident. Instead of doing this, he anticipated the stopping of the car before the proper time, and voluntarily placed himself in a position of danger, thereby contributing to the injury. See Armstrong v. Met. St. Ry. Co., 36 App. Div. 525, 55 N. Y. Supp. 498, affirmed 165 N. Y. 641, 59 N. E. 118.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

MacLEAN, J., concurs.