Bruno v. Brooklyn City Railroad , 25 N.Y.S. 507 ( 1893 )

Van Wyck, J.

This action was brought to recover damages alleged to have been inflicted upon the plaintiff through the negligence of defendant, and without any on his part. The jury rendered a imrdict in plaintiff’s favor for §1,500, and from the judgment entered thereupon, and the order denying a motion for a new trial, this appeal is taken. The testimony shows that plaintiff took passage on an open car of defendant running easterly through Flushing avenue, all the seats of which were occupied, and the rear platform of which was crowded, though there may have been standing room on the front platform. He stood facing the body of the car upon the side step running along the entire length of the car, and while he was in this position the conductor collected his fare, after which, when this car reached Washington avenue crossing, another car of defendant, proceeding along Washington avenue in a northerly direction, was approaching Flushing avenue. The driver of the latter car, instead of stopping, kept right on and drove his horses against the plaintiff, knocking him off the car, whereby plaintiff received the injuries complained of. The contention that plaintiff, in standing upon the step, was guilty of contributory negligence, as matter of law, cannot be sustained. The question was properly submitted to the jury to decide as a matter of fact. If it was error for the, court to refuse to charge the request of defendant “ That it was the duty of the plaintiff, on getting upon defendant’s car, to use reasonable care to put himself into as safe a place as he could procure,” the error was cured by the charge of the court that, if there was room on the front platform, it was the duty of the plaintiff to have taken his position thereupon, for the evidence shows that all the seats were occupied, and the rear platform was crowded. After .reading and carefully considering the testimony relating to plaintiff’s injuries, we do not think the verdict of the jury for $1,500 should be disturbed as excessive.

For these reasons, we think the judgment and order must be affirmed, with costs.

Osborne, J., concurs.

Judgment and order affirmed.