
    George W. Morison, Resp’t, v. The Broadway & Seventh Ave. R. R. Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 10, 1890.)
    
    1. Negligence—Contributory.
    Plaintiff signaled a horse car, which slowed up and he attempted to . hoard it. After he had taken hold of the rail with both hands and had one foot on the step, the car started with a jerk which threw his feet from under him and he was dragged some distance. Held, that the question of his negligence in attempting to board the car while in motion was one for the jury.
    2. Same—Street railroads.
    Where the driver of a street car has slackened its speed to enable a passenger to go on board, it is negligent for him to start up the car with a jerk before the passenger is safely on board.
    3. Same—Charge.
    The court refused to charge that defendant could not be held liable unless its employees failed to stop the car as quickly as they could have done after plaintiff got into a position of peril. Held, no error.
    4 Same.
    Nor was it error to refuse to charge that the evidence only justified an award of nominal damages, as that was a question for the jury to determine.
    Appeal from a judgment recovered on the verdict of a jury, .and from an order denying a motion for a new trial.
    
      ¡Samuel B. Clarice, for app’lt; Edwin B. Leavitt, for resp’t.
   Daniels, J.

The verdict was recovered for the sum of $5,000, for injuries received by the plaintiff in endeavoring, as a passenger, to go on board one of the defendant’s cars, and being dragged by the car for a distance of upwards of a hundred feet. The car was passing up Broadway between five and six o’clock in the afternoon of the 20th of June, 1887. And the testimony given by the plaintiff, as a witness in his own behalf, was that he signaled the car as it was approaching and the driver eased it up, and when the rear platform came to where -he was standing that he seized the rail with his right and left hands and planted his feet, both, or one of them, on the step, when there was a sudden jerk which threw his feet from under him, and he fell; that he continued to hold on the railing with his hand, and was dragged a distance, a.s he estimated it, of 125 feet. He was still further and more minutely examined concerning the motion pf the car at the time when he endeavored to go upon the platform. And his testimony was that “ it slowed up so it got quite slow, and when the railing came abreast of me I took hold of the railing and got on the car, or put my foot on the steps, and as soon as I put my foot on the steps the car made a sudden motion and threw my foot from under me.” He was asked by the defendant’s counsel: “ Can you state whether the horses were trotting at the time you attempted to board the car ? ” and he answered: “ Trotting or galloping.”

The question was then renewed, “Ho trotting on the ordinary jog?" Ans. “ You might call it trotting. I should say they were; I call going fast trotting.” He added further: “I should think they hauled up; I did not notice the horses; the car went slow and I attempted to get on, and as soon as I attempted to touch the step the car increased in speed.” And still further he answered: “When I took hold of this railing, I should judge that the car was going about a walk; that the horses were walking.” And he further stated: “ I don’t think it was faster; it was very slow; that is the reason I got on because it was very slow.” He also testified that there was a sudden jerk and his foot went from under him, and then he was dragged along the street. This evidence was not contradicted by that of any other witness upon the trial, and it permitted the jury to conclude that the car slacked up and was proceeding at a veiy moderate degree of speed at the time when the plaintiff endeavored to reach the platform. And in the submission of the case to the jury his right to maintain the action at all was made dependent upon the proof establishing to their satisfaction the existence of this as the actual state of things. And in rendering the verdict which they did it is to be assumed that they believed and adopted this view of the evidence. And that, under the authorities, exonerated the plaintiff from the charge of negligence in endeavoring to go upon the car while it was in this state of motion. Eppendorf v. Brooklyn, etc., R. R. Co., 69 N. Y., 195,. where it was held that it could not, as a matter of law, be considered always negligent for a person to go upon a street car while it was in motion. And that it would ordinarily be perfectly safe to do so when the car was moving at a low rate of speed. And no interference with the plaintiff’s safety would have arisen if the motion of the car had not been suddenly changed. The facts were such certainly as to render the question one for the jury. Morrison v. N. Y. Central, etc., R. R. Co., 63 N. Y., 643.

The evidence which was given as to the starting the car was also of itself sufficient to sustain the conclusion of the jury that the charge of negligence or improper management against the defendant was for that cause reasonably well supported. For by the signal given to the driver he was apprised of the fact that the plaintiff desired to take passage upon the car. And having slacked up its speed to enable that to be done, it was his duty not to endanger the plaintiff’s safety by suddenly putting the car in motion before he had been able to reach the platform. And that he did this is not only supported by the evidence of the plaintiff himself, but to some extent certainly by that of another witness who was sworn upon the trial. Where a passenger is endeavoring to go upon a car in this manner, to start it up with a jerk while he is in the act of doing so necessarily tends to endanger his safety. And the act of so starting it is in and of itself careless or negligent Keating v. N. Y. Central, etc. R. R. Co., 49 N. Y., 673: Nichols v. Sixth Avenue R. R. Co„ 38 id. 131; Maher v. Central Park, etc., R. R. Co., 67 id., 52; Dillon v. Manhattan R. Co., 16 N. Y. State Rep., 767 ; Butler v. Glens Falls, etc., R. R. Co., 17 id., 565.

And the case of Hayes v. Forty-second Street R. R. Co.. 97 N. Y., 259, in no way overrules or denies these authorities the weight or effect secured to them by the decisions which then were made. Ror in the latter case it was held that there was no evidence tending to establish negligence on the part of the railroad company. Y'hile in this case, as the driver understood that the plaintiff was about to go on board of the car, and had slacked its speed to enable him to do so, it was negligent for him to start up the car with a jerk before the plaintiff was safely on board. In both respects the evidence was ample for the consideration of a jury.

The evidence, not only of the plaintiff but of other witnesses in the action, was that he had received very grave and serious injuiics by being dragged as he was by the car along the street

A medical witness, who had attended the plaintiff as a physician, was asked whether it was probable or improbable that, in the present condition of his arm, it would get well. This was objected to as immaterial and speculative, but the witness was allowed to answer the question, and to that the defendant excepted. The witness then said: “I think it is improbable at his age.” The defendant’s counsel then moved to strike out the ans-w< r on the same grounds. That was denied by the court, and an exception taken to the denial. Immediately thereupon the plaintiff’s counsel stated that he would withdraw the last question and answer, so as to have no exception in the. case. And that he was permitted to do. The objection which was interposed, that it was immaterial and speculative to investigate this subject by the inquiry which was made, was not well founded, for the plaintiff had the right to prove that the injury was probably permanent in its character. And this evidence tended to establish that to be the fact There was no objection taken to the form of the question, but it was confined to the inquiry as to the fact And that fact the plaintiff was entitled to prove, if it could be done, either by this or any other witness in the action. Strohm v. New York, Lake Erie, etc., R. R. Co., 96 N. Y., 305. But if there had been the least impropriety in the ruling allowing the question to be answered, it was corrected by the plaintiff’s counsel immediately acceding to the motion which was made to strike out the evidence. And after that had been done in accordance with the motion, the defendant was not in a position to complain of the answer.

Certain requests were made to the court for instructions to the jury. They were all complied with except in three instances. The first included the proposition that the defendant could not be held liable unless its employees failed to stop the car as quickly as they could have done after the plaintiff got into a position of peril in attempting to board it. The refusal to charge this request was entirely proper, for the reason that a liability existed against the defendant if the plaintiff was carelessly thrown from the car and precipitated to the ground and there received substantial injury.

The next request was that the evidence would justify no more than an award of nominal damages. This, also, was in like manner properly refused, for the reason that it was for the jury to determine upon the evidence before them what damages the plaintiff had in this manner sustained. ¡Neither would the court have been justified in directing the jury to reject the plaintiff’s claim for compensation for injuries received by him after he had been placed in a position of peril in attempting to board the car. The last proposition was connected with others, one of which at least was proper for the direction of the jury if it had not been sufficiently stated to them in the charge itself. They were directed to compensate the plaintiff for the injuries received by him, and to add no more by their verdict than such a compensation would amount to. This was entirely within the range and limits of the case, and restricted the jury in their action to the legal principles applicable to it

The verdict cannot be said to be disproportioned to the injury which the plaintiff received. It was grave and serious, disabling him for a time to pursue bis ordinary occupation. And that disability was not entirely removed at the time of the trial. TTis sufferings are shown to have been great, and it cannot be said from the evidence that any larger verdict was rendered in the case than was necessary to remunerate him for the consequences of the wrong he had suffered. The judgment and order should be affirmed.

Van Brunt, P. J., concurs in the result  