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would sustain the finding. In my opinion, proper rules of law were laid down for the guidance of the jury in disposing of the issues arising under that cause of action. From reading so much of the evidence as is now before me, I am convinced that it was clearly within the province of the jury to find on questions of fact, arising under this issue, either for plaintiff or for defendant. Since they have found for plaintiff, upon sufficient evidence, the court should not disturb the verdict. The motion for a new trial must be denied. Defendant's motion for an additional allowance must also be denied. I can find no authority for granting an additional allowance to a party who is not entitled to costs. An additional allowance cannot be awarded to a party in whose favor no costs can be taxed. Couch v. Millard, 41 Hun, 212. The plaintiff may have an additional allowance of 5 per cent. on the amount recovered.
(4 Misc. Rep. 465.) PFEFFER V. BUFFALO RY. CO.
(Superior Court of Buffalo, General Term. July 14, 1893.)
1. STREET RAILROAD-INJURY TO PASSENGER-BOARDING CAR.
In an action against a street-railroad company for personal injuries, it appeared that the car had stopped at a crossing, and was started again by the motorman while plaintiff was getting on the front platform. The evidence showed that plaintiff walked from some distance to the car, and was in plain view of the motorman as he did so, and was getting on within two or three feet of him. Held, that the evidence justified a finding that the motorman saw plaintiff attempt to board the car, or should have
done so. 2. SAME-RULES OF COMPANY.
The fact that the crossing where the car had stopped was not a regular stopping place, and that stopping there was in violation of defendant's rules, did not release defendant's servants from the duty of looking out for any person attempting to get on board the car while stopping there, when the evidence showed that cars were constantly stopped there, and
that the public had no notice of such rule. 8. SAMEINSTRUCTIONS.
An instruction that defendant was not liable "if the motorman started the car while plaintiff was attempting to board it by the front platform, if he was not aware of the plaintiff's presence there," was properly
refused. 4. SAME-CONTRIBUTORY NEGLIGENCE.
An attempt to board a stationary car by the front platform is not neg.
ligence per se. 5. EXCESSIVE DAMAGES-PERSONAL INJURIES.
Plaintiff in an action for injuries resulting in the loss of both feet was 36 years old, his expectancy of life was 12.377 years, and he was capable of earning only $8 per week. On this basis his earning power for the balance of his life was $5,863, and the earning power of this sum was $3,186, aggregating, with the expenses incurred by reason of the injury, $9,379. Held that, though there were other elements of compensatory
damages to be considered, a verdict for $20,000 was excessive. 6. NOTICE OF APPEAL -SUFFICIENCY.
Under Code Civil Proc. $ 1300, providing that an appeal must be taken by serving a written notice to the effect that the appellant appeals from the judgment or order, a notice stating an appeal from the judgment in the case, and then that “appellant intends to bring up for review, upon such
appeal, the order dated the 25th day of October, 1892, denying defendant's motion for a new trial herein on the judge's minutes," is sufficient notice of appeal from the order.
Appeal from trial term.
Action by Henry L. Pfeffer against the Buffalo Railway Company. From a judgment entered on a verdict for plaintiff, and from an order denying motion for a new trial made on the minutes, defendant appeals. Modified.
Argued before TITUS, C. J., and HATCH, J.
HATCH, J. There is discovered in the record conflicting testimony, but not more so than is usually present in negligence cases, nor is it so serious in conflict as many cases of this character present. Taking the undisputed matters and the finding of the jury, the following facts must be deemed established: On Sunday morning, about 9 o'clock, on August 30, 1891, plaintiff arrived at the corner of Balcom street and Harvard place, for the purpose of taking a Harvard place car, to be transported thereon to Buffalo park, where he was employed by a sewer contractor to watch tools. Near Harvard place is situated defendant's stables and storage sheds for its cars. The motive power upon defendant's cars running out Harvard place at this time was electricity, applied, by means of the trolley system, to cars formerly propelled by horse power, and in no wise changed, except that the electrical machinery had been placed thereon; but the cars themselves, in the structural part, for the carrying of passengers, remained unchanged, as did also the appliances for entering and alighting therefrom. Both the front and rear ends were open and unprotected by gates or other appliance, and presented the open ordinary step of a horse street car. On the morning in question, two cars, propelled by electricity, supplied in each case by a motorman and a conductor, ran from the storage shed onto the Main street track, and from there switched onto the Harvard place track. The surroundings were these: Between the switch and the corner of Balcom street and Harvard place is a cross walk, nearly in front of “Sargent's Saloon,” so called, from 40 to 45 feet distant from the corner of Harvard place. Upon the last-named corner stands Stemler's saloon, and across the street from that, on the northwesterly corner, is a greenhouse. The intervening space between Stemler's saloon and the cross walk is a clear open place, with no obstruction to shut off the vision. Plaintiff established by five witnesses, including himself, that he arrived at the corner about 9 o'clock in the morning, and stopped in front of Stemler's saloon to wait for the car; that the two cars came from the shed, and were switched onto the Harvard place track, and ran to the cross walk, where the first car stopped, the other car stopping about seven or eight feet in its rear; that the cars remained sta
tionary three or four minutes at this point, and, while so standing, plaintiff walked from in front of Stemler's saloon, across the open space, to the car, took hold of the iron in front of the dash board, on the front end of the car, placed one foot upon the first step, and, while drawing his body up, the motorman suddenly started the car, which gave a shock or jerk. Plaintiff was thrown off his balance, fell to the ground, and his legs, coming between the front and rear wheels of the car, were run over by the latter, and were so injured that amputation of both feet became necessary. It was further shown, and, under instruction from the court, the jury have found, that the cross walk where this car stopped was a place where the cars frequently stopped for the purpose of discharging and taking on passengers. The defendant gave evidence by three witnesses tending to establish that the car in question did not stop at the cross walk on this morning, but continued in motion until after the happening of the accident; and by two witnesses, that plaintiff attempted to board the car while in motion, and, failing to secure a firm hold, was thrown under the car. As before observed, this evidence is conflicting, and the jury have negatived defendant's contention. So far as plaintiff's witnesses were concerned, there is little, if anything, beyond the testimony of defendant, above noted, which tends to discredit them. Three of them were former employes of defendant at the time of the accident, and two of them had voluntarily left its service after. Under what circumstances the third left the case does not disclose. All that appears is that at the trial he was not in the employ of defendant. The two witnesses first noted sat but a short distance from the place of accident, and in plain view of it. The third was the motorman of the hind car. He did not see plaintiff when approaching the car, but saw him as he was getting on; was positive the car was then stationary; saw it start; and saw plaintiff fall. The fourth witness stood in front of Stemler's saloon, in plain view of the whole transaction. There was an attempt made to contradict the testimony of plaintiff's witnesses, or some of them, by showing that defendant's at' rney, a short time after the accident, talked with them, and reduced their statements to writing, which were signed by them, in which they said the car was in motion when plaintiff attempted to board it; but the witness was unable to identify with certainty but one witness, Collins, who was defendant's witness, while the written statement was not produced, and its absence was unaccounted for. There is therefore nothing which would justify the court in disregarding the testimony of these witnesses, or from which we can say that they are in any view discredited. Applying ordinary rules, there is a fair preponderance of testimony in favor of plaintiff's theory.
It is, however, claimed that the undisputed testimony fails to show that defendant was guilty of negligence. This claim is supported by the following suggestions: That the motorman was in his proper place, and that plaintiff gave him no sign that he de
sired to or contemplated taking the car; that the motorman did not in fact see plaintiff until he was in the act of falling, and that there was ncthing in plaintiff's actions prior thereto which conveyed or ought to have conveyed to the motorman's sense that he was intending to take the car, and that as this place was not a regular stopping place for the car, and it was in fact a violation of the rules of the company to stop there, no obligation was therefore imposed to look out for passengers at this place, which fact, as well as the fact that the corner where plaintiff first stood was not a regular stopping place, was, or at least ought to have been, known to him; that the manner in which the car was started was not shown to be negligent, or that it was done in an unusual or unskillful manner. The testimony showed that plaintiff walked from Stemler's towards the car. The space was open. When he walked towards the car, he walked towards the motorman, and there was nothing requisite for the motorman to discover him other than to use his eyesight. Nothing distracted his attention. There was no need of a signal, as the car was stationary, and it does not appear that the motorman was making any move to start it. When plaintiff reached the car, it was motionless; and when he took hold of the rail of the car, and stepped upon the step, he was brought to within two or three feet of the motorman. All of these circumstances were before the jury, and upon them the court submitted the question to the jury, did the motorman see the plaintiff, or, if not, ought he, in the proper discharge of his duties, to have seen him, and known of his attempt to board the car? It needs no argument to prove that these circumstances authorized the jury to draw the inference that a proper discharge of duty would have appraised the motorman of plaintiff's presence and desire to take the car before it was started. The next suggestion is not supported by the testimony. Plaintiff's proof tended to establish that this cross walk was a point where the cars frequently stopped, and that passengers were taken up and left off at that point, and the motorman, Coventry, stated that he had stopped there a hundred times for that purpose, and he thought it was known to the motorman and conductor of this car; while Schabell testified that the barn boss, Phillips, ordered him to stop his car there, and this latter statement stands uncontradicted. The court also submitted this question to the jury, and the jury negatived defendant's claim. Whether stopping at this point was in violation of defendant's rules was a mooted question. Two of plaintiff's witnesses stated that it was in violation of defendant's rules to stop there, while Coventry testified that he knew of no such rule; that it was never called to his attention; and that, in fact, at this time there were no rules for running these motor cars at that place. But, if it be conceded that stopping at this point was in violation of defendant's rule, I do not see that defendant is aided. The fact that they did stop there, and take on and let off passengers, is, as we have seen, established. If such rule existed, there is not a particle of evidence to show that plaintiff had notice of it either actually or inferentially. No proof was given
to show that it was posted in a car, or in a place where passengers would be likely to see it, or any means whatever adopted to bring it to the attention of passengers. While it is doubtless true that passengers are bound to observe reasonable rules and regulations, yet, before they can be bound, the rule must in some manner be called to their attention, in such a way that they may know, or be chargeable with knowledge, of its existence. Railway Co. v. Wilkinson, 30 Md. 224. A continued violation of defendant's rule by its employes, instead of being notice to a passenger that a rule is being violated, may become, on the contrary, an assurance to the passenger, upon which he may rely, that what is proper to do is being done. The fact that the car also stopped at the corner in no manner detracted from the force of the fact that it also stopped on the cross walk. It is matter of little moment whether the car was started in the usual or in an unusual manner, whether skill was used or the reverse; the vice of the action lies in starting it at all before the passenger had reached a place of safety. It has long been the settled law that, where passengers are getting on or alighting from cars propelled by steam, to suddenly start the car, thereby endangering the safety of the person, without giving warning, is an act of negligence. Keating v. Railroad Co., 49 N. Y. 673. And this rule has been applied to street cars propelled by horses. Poulin v. Railroad Co., 61 N. Y. 621; Maher v. Railroad Co., 67 N. Y. 55; Morrison v. Railroad Co., 130 N. Y. 166, 29 N. E. Rep. 105; Akersloot v. Railroad Co., 131 N. Y. 599, 30 N. E. Rep. 195. Stronger reasons exist for applying this rule to cars propelled by electricity than to horse cars, as the motive power is more sudden and powerful in its operation. The jury were authorized to find that the act of starting threw plaintiff off, and produced the injury. It is also argued that plaintiff was guilty of contributory negligence in attempting to board this car by the front platform. The testimony tended to establish that it had been customary for passengers to leave the cars, when propelled by horses, at either end of the car, with the sanction of those in charge. It was stated by Coventry that this custom continued after the application of electricity. The cars used were the same horse cars, with a different motive power. Doubtless, if a person were injured in attempting to board or leave a car by the front platform, custom would not alone protect him; whether negligent or not would be dependent upon the surrounding circumstances. It furnishes a circumstance to enable the court and jury to find the fact; but I know of no rule of law, and am cited to no authority, holding that an attempt to board a stationary car by the front platform is negligence per se. It is doubtless competent for a jury to find that, under given circumstances, it constitutes negligence, or for the court to so determine. As applied here, I think it presented a question of fact. We must bear in mind that this was a place where passengers were frequently taken on and let off. Such condition imposed upon the defendant and its agents an active, affirmative duty to properly protect all passengers. So long as the car stood still, it was as safe to