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the street.” A passenger, a plumber, testified that he was on the back platform, where he saw plaintiff standing close to the gate and fall off the car. “The gate broke, and this man fell out of the car. The gate fell off and swung on the car. It was loose. The back part of the gate next the dashboard was swinging." The defendant offered no evidence.

The court, after charging the jury as to the general rules of law applicable to an action for damages by reason of negligence, and as to the care required by defendant in the operation of its car and the absence of negligence on his part which plaintiff must show before he could recover in any case, charged the jury concerning the degree of care required of the defendant in the maintenance of its appliances as follows:

"The defendant was required to exercise the utmost human skill, care, and foresight in the maintenance of its appliances for the protection of its passengers. * * Carriers of passengers are not in every branch of their service held to the utmost accountability. They are not insurers; but the rule has not been relaxed as to the condition of the machinery or appliances upon cars used for the transportation of passengers. I charge you that this gate which is on the side of the platform of the car should not be considered as merely an incident to the proper duty of transportation, but that it is an appliance used in the very transportation itself. The question for you to determine is whether or not the injuries which were received were caused solely by careless maintenance of a defective or insufficient gate."

The defendant contends that this was error; that a gate upon a surface street car is not an appliance. The rule as stated is abundantly supported by authority. Bartnik v. Erie R. R., 36 App. Div. 246, 249, 55 N. Y. Supp. 266; Holbrook v. Utica & S. R. R., 12 N. Y. 236, 64 Am. Dec. 502; Morris v. N. Y. C. & H. R. R. R., 106 N. Y. 678, 13 N. E. 455; Breen v. N. Y. C. & H. R. R. R., 109 N. Y. 297, 16 N. E. 60, 4 Am. St. Rep. 450; Palmer v. Penn. Co., 111 N. Y. 488, 18 N. E. 859, 2 L. R. A. 252; Miller v. Ocean S. S. Co., 118 N. Y. 199, 23 N. E. 462; Palmer v. D. & H. C. Co., 120 N. Y. 170, 24 N. E. 302, 17 Am. St. Rep. 629; Stierle v. Union Ry., 156 N. Y. 70, 50 N. E. 419; Id., 156 N. Y. 684, 50 N. E. 834; Duhme v. Hamburg-Am. Packet Co., 184 N. Y. 404, 77 N. E. 386, 112 Am. St. Rep. 615. In Stierle v. Union Ry., 156 N. Y., at page 73, 50 N. E., at page 419, Judge Gray says:

“The obligation of carriers of passengers to exercise the highest degree of care which human prudence and foresight can suggest only exists with respect to those results which are naturally to be apprehended from unsafe roadbeds, defective machinery, imperfect cars, and other conditions endangering the success of the undertaking. In every case the degree of care to be exercised is dependent upon the circumstances, and if the accident is attributable to the existence of defects in the road or in the mechanical appliances availed of for the operation of the railroad, by reason of which there was a possibility of loss of life or limb to the traveling public, the strict rule requiring the highest degree of care and of human skill would be applicable."

In Duhme v. Hamburg-Am. Packet Co., 184 N. Y. 404, at page 409, 77 N. E. 386, at page 387, 112 Am. St. Rep. 615, the court says:

“If the plaintiff were a passenger, that relation would require the exercise of the utmost degree of care commensurate with the contract of carriage. It would render the defendant liable for the slightest neglect against such buand 140 New York State Reporter man prudence and foresight might have guarded as to results from defective conditions found to exist in machinery, appliances, or other matters essential to safety of operation. In all such cases the conditions may be such as to war rant the application of the rule of res ipsa loquitur."

If such a gate is within the definition of "defective machinery, imperfect cars, and other conditions endangering the success of the undertaking,” it is within the rule requiring “the highest degree of care which human prudence and foresight can suggest.” A gate on the side of an electric surface car is, in my opinion, an appliance. It is a part of the car attached to it by hinges, and, when shut, fixed at the other end by a hook. It is part of the machinery "availed of for the operation of the railroad.” When the car is crowded, a defective gate may lead to most serious injury, and its improper maintenance cause “loss of life or linib to the traveling public." The condition of travel shown required the utmost care in the maintenance of the gates on the street cars of this city. A secure gate is "essential to safety of operation." Whether the company met this obligation was properly submitted to the jury. In Norris v. Brooklyn City R. R., 4 Misc. Rep. 294, 24 N. Y. Supp. 140, affirmed 143 N. Y. 666, 39 N. E. 21, it was held, where a crowded rear platform broke and a passenger was thrown to the street, that the question whether the platform was insecure and whether the defendant exercised the proper care in its maintenance were properly submitted to the jury, and that the motion to dismiss the complaint was properly denied.

The defendant further contends that a verdict should have been directed for the defendant because plaintiff failed to show proper precaution on his part and was therefore guilty of contributory negligence. There was no proof that the accident was caused by nego ligent operation of the car, and the jury was so instructed. Where the negligence alleged and proved is negligence in the management of the car it may be, as stated in Depew v. N. Y. City Ry., 112 App. Div. 260, 98 N. Y. Supp. 276, "that one standing upon an open platform owes to himself or his carrier some precaution, either by manner of standing or grasping some support, . against losing his balance by any sudden motion of the car.” But this case is not based upon negligent operation, but upon negligent maintenance of an appliance, to which a different rule must be applied. The failure to use precaution, when the passenger' may do so, against loss of balance caused by a sudden motion due to careless operation, must necessarily by such negligence as contributes to the injury sustained. But failure on the part of a passenger to provide against loss of balance does not necessarily contribute to an injury due to a defective appliance. Taking hold would not prevent an injury caused, not by loss of balance, but by a defective gate. A passenger is not called upon to provide against a defective appliance, unless such defect is shown to have been known, or under the circumstances should have been observed, by him. The only precaution which could be taken against a concealed defect in an appliance would be to refrain from riding on the car. Lack of proof, therefore, that plaintiff took precaution against negligent operation, does not require that the com

plaint be dismissed, or that a verdict be directed for the defendant, where the cause of action is based upon the defendant's negligence in maintaining an appliance. The question for the jury was, as charged, whether the defendant exercised the skill, care, and foresight in the maintenance of this appliance for the protection of its passengers required by law, and, if not, whether plaintiff's injuries were caused solely by such careless maintenance. The evidence concerning plaintiff's position and attitude was called to the attention of the jury, and it was instructed that he must have shown himself free from any contributory negligence and that the accident was caused solely by the negligence of the defendant. The action, in my opinion, was properly submitted to the jury.

Motion denied.

DISENSTEIN V. OLD DOMINION S. S. CO.

(City Court of New York, Special Term. August, 1907.) TBIAL-CALENDARS-TRANSFER OF CAUSES.

Where, in an action, a note of issue was filed, and the cause was noticed for trial and placed on the general calendar, a motion to transfer the cause to the special calendar might, under court rules providing that, where a note of issue has been filed and the cause noticed for trial, either party may apply for an order placing the cause on the special calendar, be made either before or after the term for which the cause had been noticed.

Action by Israel Eisenstein against the Old Dominion Steamship Company. Motion for an order placing the cause on the special calendar. Granted.

Morris Cukor, for plaintiff.
Robinson, Biddle & Benedict, for defendant.

WADHAMS, J. Motion is made for an order placing the cause on the special calendar for actions the trial of which will not occupy more than two hours. Objection is made that the motion is prematurely brought, in that the cause has been noticed for the first Monday of October, 1907, and that a motion to advance should not be entertained until after that date. Rule 2 of the Rules of the City Court of the City of New York provides in respect to such motions:

“In actions on contract, of replevin or for conversion, where a note of issue has been filed and the cause noticed for trial, either party may apply to the Special Term, on two days' notice to the adverse party, for an order placing the cause on the special calendar."

In this action a note of issue has been filed and the cause noticed for trial. The language of the rule is clear and its meaning plain. In the absence of some controlling reason to the contrary, the rule should be construed according to its explicit terms. No such reason is presented.

It is urged that until the date for which the cause is noticed for trial no cause can properly be said to be upon the calendar of the court. Such is not the practice. The note of issue having been filed, the cause has been given a number and placed upon the general calendar. The

and 140 New York State Reporter rule in question requires that "the order shall specify the number of the cause on the general calendar.” After notice of trial the disposition of the action by trial must then await the term for which the action is noticed, but a motion to transfer the cause from the general to the special calendar may, under the rule, be made either before or after the term for which the cause has been noticed. The practice prescribed is uniform with that in other courts of record under similar rules, and with that upon motions for preference under section 793 of the Code of Civil Procedure. Moreover, it is in aid of the disposition of business, preventing the crowding of the Special Term calendar at the end of the summer recess, and enabling the calendars to be prepared in advance of the opening of the term for which the cause is noticed.

It appearing that the trial will not require more than two hours, the motion is granted.

NEW YORK EVENING JOURNAL PUB. CO. V. WILLIAM F. SIMPSON

ADVERTISING AGENCY.

(City Court of New York, Trial Term. June, 1907.) 1. TRIAL-QUESTIONS FOR JURY-WEIGHT OF EVIDENCE.

The question of the weight of evidence is for the jury, and they may believe one witness, even though he be a party, as against a number of other witnesses.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, $8 332-335.] 2. SAME_DIRECTION OF VERDICT_CONFLICTING EVIDENCE.

A verdict cannot be directed for a party, whatever the weight of erldence in his favor, where evidence has been given on the other side which presents an issue of fact upon which the jury could properly proceed to find a verdict.

[Ed. Note.For cases in point, see Cent. Dig. vol. 46, Trial, $ 377.] 3. NEW TRIAL-GROUNDS-VERDICT AGAINST WEIGHT OF EVIDENCE.

Where the evidence in an action is so evenly balanced that reasonable men might differ as to the inferences to be drawn therefrom, and it is clearly submitted to the jury, the trial court should not set aside the verdict as against the weight of evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, $ 142–145.] Action by the New York Evening Journal Publishing Company against the William F. Simpson Advertising Agency. Motions to direct a verdict for plaintiff and to set aside a verdict for defendant. Denied.

Clarence J. Shearn, for plaintiff.
Alger & Simpson, for defendant.

WADHAMS, J. Motions are made to direct a verdict in favor of the plaintiff and to set aside a verdict rendered in favor of the defendant. The authorities cited by the plaintiff to the effect that it must be held as a matter of law, where both parties are of equally good character and alike unimpeached, and as witnesses contradict each other directly upon a question of fact, and their testimony is totally irreconcilable, in the absence of other testimony the case will

City Ct.) NEW YORK E. J. P. CO. V. WILLIAM F. SIMPSON AD. A.

859

stand evenly balanced, and the complaint or defense must be dismissed, are overruled. Language similar_to that quoted may be found in Lummas v. Van Dyke, 17_App. Div. 621, 45 N. Y. Supp. 489; Hopkins v. Clark, 14 Misc. Rep. 599, 36 N. Y. Supp. 456; Campbell v. Yorkston, 11 Misc. Rep. 340, 32 N. Y. Supp. 263 ; Syms v. Vyse, 2 N. Y. St. Rep. 106; Smith v. Gunn, 59 Hun, 616, 12 N. Y. Supp. 808; Stevens v. Trask (Com. Pl.) 18 N. Y. Supp. 117; Losee v. Morey, 57 Barb. 561, and other early cases. These are no longer controlling

The question of the weight of evidence is for the jury, and they are at liberty to believe one witness, even though he be a party, as against a number of other witnesses. In Steinle v. Met. St. Ry., 69 App. Div. 85, 74 N. Y. Supp. 482, the plaintiff was uncorroborated and there were eight witnesses, three of them disinterested, for the defendant. The court says on page 36 of 69 App. Div., page 483 of 74 N. Y. Supp.:

“There was, however, some evidence (the testimony of the plaintiff) of the fact that would make the defendant liable, and, that being so, under the rules now established in this state, plaintiff had the right to have the case submitted to the jury. McDonald v. Met. St. Ry., 167 N. Y. 66, 60 N. E. 282."

In Philips v. Philips, 79 App. Div. 113, 78 N. Y. Supp. 1001, the court at page 115 of 77 App. Div., page 1002 of 78 N. Y. Supp. says:

"Upon the law as now authoratively laid down by the Court of Appeals, a verdict cannot be directed for a plaintiff or defendant, no matter how great the weight or preponderance of evidence may be in his faror, where, on the other side, evidence has been given which presents an issue of fact and upon which the jury could properly proceed to find a verdict."

The motion to direct a verdict must therefore be denied.

The verdict rendered is the second verdict which has been found by a jury in favor of the defendant, and, in my opinion, it is not so clearly against the weight of evidence as to furnish proof that the jury was influenced by passion, prejudice or mistake. In Von Der Born v. Schultz, 104 App. Div. 94, 93 N. Y. Supp. 547, the court lays down this rule:

"Where the evidence given in an action is so evenly balanced that reasonable men might differ as to the inferences to be drawn therefrom, and such evidence is clearly submitted to the jury, the trial court should not in the exercise of its discretion set aside the verdict reached as against the weight of evidence."

There was such evidence in this case.
The motion to set aside the verdict must be denied.

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