Dambmann v. Metropolitan Street Railway Co.

Haight, J.

The action was brought to recover damages for a personal injury. The complaint alleged that the plaintiff was a passenger upon one of the defendant’s cars; that she had asked the conductor to stop the same for the purpose of allowing her to alight and that thereupon the car stopped and she left her seat and attempted to alight therefrom, “ but that, through the negligence and carelessness of the conductor or motorman, or both, said car was suddenly and violently started while the plaintiff was in the act of alighting therefrom ; that in consequence of the aforesaid negligence, and without fault or negligence on the part of the plaintiff, she was violently thrown down into the street ” and received the in juries for which this action was brought. This allegation is the only act of negligence alleged in the complaint.

Upon the trial it appeared that on the 24tli day of Xovember, 1899, a little before half-past six o’clock in the evening, the plaintiff attempted to alight from one of the defendant’s cars on Vanderbilt avenue, between 42d and 43d streets, in the city of Xew York; that in so attempting to alight she fell upon the pavement and received the injuries complained of. She was a woman twenty-five years of age at the time, was a singer by profession and was on her way to Yonkers to attend a choir rehearsal. It was her intention to enter a drug store on the northwest corner of, 42d street and Vanderbilt avenue and get some troches,and then to take the Xew York Central train at half-past six o’clock for the place of her des tination. Her testimony was to the effect that she asked the conductor to stop the car after it had turned the corner from é2d street into Vanderbilt avenue and that in consequence of such request the car was stopped a short distance north of 42d street and that several persons alighted therefrom; that she attempted to alight, but just as she was stepping to the ground the car started suddenly, throwing her violently upon the street. The testimony of Dr. Waitón, her attending physician, who was sworn in her behalf, was to the effect that he was standing upon the rear platform of the car and that she was hit by the “ hind rail of the car ” as it passed her and was thrown to the pavement, and that he could not say whether her feet were on or off the car at the time when it started. On behalf of the defendant there was testimony given by three witnesses who, in substance, stated that she attempted to alight from the car before it had come to a stand, by taking hold of the rear rail and stepping off, and in doing so was thrown to the pavement.

The trial court, in submitting the case to the jury, gave general instructions to the effect that the plaintiff must prove to their minds “ by a fair preponderance of evidence that this fall was caused by the negligent act of this defendant corporation.” He did not, however, instruct the jury as to the particular act of negligence alleged in the complaint, upon which the plaintiff relied for a recovery of damages. At the conclusion of the charge the defendant’s counsel requested the court to instruct the jury that “ the plaintiff cannot recover unless she satisfies you by testimony of greater weight than that offered by the defendant that the accident happened by reason of the sudden starting of the car after it had come to a full stop in response to a signal or request given by her to the conductor.” This the court refused to charge, except as it had heretofore charged.

The court, as we have seen, had charged as to the weight of the evidence necessary, but had neglected to charge the latter clause embraced in the request as to the sudden, starting of the car after it had come to a full stop. Inasmuch as this was the specific act of negligence alleged in the complaint the request was proper and should have been charged. It was important, in view of the conflicting evidence in the case, and especially in view of the testimony of the plaintiff’s witness, W alton, who, in substance, had testified that she was hit by the back rail of the car. The refusal to charge as requested was, therefore, an error which calls for a reversal of the judgment unless it was subsequently cured. After passing upon a number of other requests to charge the defendant asked the court to charge “ that there is no alleged negligence of the defendant upon which a recovery can be based in this case except the sudden starting of the car after it came to a full stop.” This the court refused to charge, and an exception was taken, but subsequently the trial judge asked to see the complaint, and after looking at that instrument the court withdrew the refusal to charge the last request and charged it as requested. Thereupon the defendant’s counsel asked the court to change his refusal to charge the first request, but the court refused to charge it, except as already charged. To this the defendant’s counsel took another exception.

We think, in view of the general language used by the court in its main charge, the defendant had the right to have the jury plainly instructed as to the acts of negligence upon which a recovery could be had ; that the conflicting rulings of the court served to confuse the jurors as to the true rule of law which was to govern them in determining the questions of fact involved, and that the error in refusing to charge the first request was not cured by that which subsequently occurred in the concluding request, to which attention has been called.

Tliere were a number of exceptions taken to the admission of evidence, which we do not deem it necessary to here consider. The error pointed out requires a new trial, and upon such trial questions with reference to evidence may be' eliminated.

The jiidgment should be reversed and a new trial granted, with costs to abide the event.