Paulson v. Brooklyn City Railroad , 34 N.Y.S. 244 ( 1895 )

Clement, Ch. J.

The plaintiff, on the morning of March 24, 1893, attempted to get upon the front step of a closed trolley car operated by defendant. He had in his left hand sash cord from thirty to fifty feet long made into a bundle of about one foot in length and about an inch and a half to two inches in thickness; a hammer was stuck through the sash, cord. Plaintiff testified that he signaled to the motorman to' stop the car, that the motorman began to work his brake, slowed down his car, and that he (plaintiff) grabbed the front rail of the front platform with his right hand and got both feet upon the step. At folios 28 and 29 he said : “ I grabbed the front rail with my right hand and I don’t remember if L had hold with the left hand or not. Well, then, the car made a jolt; I had both feet on the step, stood like this, and the car-struck me here, and the car made a jerk. The car started ahead quick. * * * Q. Did that happen as soon as you put your foot on the platform ? A. Soon —■ all in a moment, the car started quick. Then I don’t remember any more, only that I remember that I hung on to the car with my right hand.” The plaintiff had no witness to corroborate his testimony. Eight witnesses for the company testified that the car was moving at the ordinary speed when plaintiff' attempted to get on. Several disinterested witnesses testified that the plaintiff missed the handrail with his left hand and ' was dragged by the car for that reason, while he was holding on with his right hand.

"We think that the plaintiff failed to make out a case against the company. He attempted to board the front step of a moving trolley car. In so doing he was bound to exercise the care of a reasonably prudent person, and more care was necessary than if he had waited to board the rear step, or for the car to stop. He was injured because he failed to take hold of the handrail on the body of the car with his left hand. Plaintiff testified: “ I grabbed the car with my right-hand first, and then I knowed that I had in my mind to strike the other rail with the left hand. I got hold of the handrail at the dashboard with my right hand, and I got a good hold of that, and I attempted to get hold of the handrail next the body of the car with my left hand ; and at that time on my left wrist was hanging this roll of rope and this hammer, and whether I caught hold of that or missed that handrail I don’t know.” The testimony of the plaintiff that there was a “ jerk ” or sudden movement of the car when he jumped on the step does not necessarily show that there was negligence on the part of the motorman. When a person steps on a moving car there is always a jerk or sudden movement. -According to the testimony of the witnesses for the defendant, the instant the plaintiff mounted the step of the car the motorman turned on his brake, which would necessarily produce a sudden jerk of the car. The plaintiff 'did not contradict such testimony, and inferred, without knowledge of the fact, that the car was suddenly started because he felt a jerk as soon as he got upon the step. The plaintiff did not use his left hand in attempting to get on, or, if he did make the attempt, could not use his hand by reason of the sash cord and hammer which he carried. The testimony of the plaintiff as to the speed of the car is conflicting and confused.

Judgment and order denying new trial reversed and new trial granted, costs to abide the event.

Van Wyok, J., concurs.

Judgment and order reversed and new trial granted, costs to abide event.