
    William J. Butler, Resp’t, v. Glens Falls, Sandy Hill and Fort Edward Street Railroad Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1888.)
    
    1. Negligence—Street railroad—Passenger injured while atteme r— JNG TO GET ON MOVING CAR—RIGHT OP RECOVERY.
    On the trial of an action for damages for an injury to the plaintiff, received while he was attempting to get on one of defendant’s cars, caused by the alleged negligence of the defendant, the testimony of the plaintiff was to the effect that he made two signals indicating his desire'to enter the car as a passenger, he being at the time in full view of the conducted and the person driving. That after the second signal the horses commenced tc slacken their gait from a trot as they approached the crossing where the plaintiff was standing, came to a very slow walk and nearly stopped; that he attempted to enter the car by seizing the rail and placing one foot upon the step, and while in the act of raising the other foot, the conductor called out to the boy who held the lines “Don’t stop there," when the horses were suddenly urged forward by a slap of the lines which caused a sudden jerk, which had the effect to throw the plaintiff from the car to the ground and caused the injury complained of. There was a sharp conflict in the testimony in regard to the material facts. Held, that it was a question for the jury. That they were justified in rendering a verdict for the plaintiff if they accepted his testimony as true.
    2. Same—When person getting on not necessarily a trespasser— Right op railroad company on refusal to pay fare.
    A person who in an orderly way attempts to enter a street car, is not to be regarded as a trespasser, until or before he has paid the required fare. Where the passenger refuses to pay the fare upon request he may be ejected in a proper manner.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered herein upon the verdict of a jury rendered at the Washington county circuit, and from an order denying a new trial.
    
      M. A. Sheldon, for app’lt; A. V. Pratt, for resp’t.
   Ingalls, J.

The trial of this action developed a fair question of fact, which involved the merits of the controversy, and the evidence shows a sharp conflict in regard to the material features of the case. And the evidence does not preponderate so decidedly in favor of the defendant as to call for a reversal of the judgment upon that ground. The testimony of the plaintiff is to the effect that, as the car approached him, he made two signals indicating his desire to enter the car as a passenger, he being at the time in full view of the conductor, and of the other person who he states was driving at the time, and could have been seen if either had been attentive; that after the second signal, the horses commenced to slacken their gait from a trot, and as they approached the crossing where the plaintiff was standing,, came to a very slow walk and nearly stopped; that he attempted to enter the car by seizing the rail and placing one foot upon the step, and while in the act of raising the other foot, the conductor called out to the boy who held the lines: “Don’t stop there!” when the horses were suddenly urged forward by a slap of the lines, which caused a sudden jerk which had the effect to throw the plaintiff from the car to the ground, and caused the injury to his foot of which he complains.

Maron D. Richards, who was a passenger on the car, testified: “Was riding on this car at the time and place of the accident; I should think the horses were traveling on a walk; I have no doubt about it; naturally it would be a slow walk; I could not tell whether the horses had been trotting just previous to that, or not; I was busy talking to another man; at this crossing I felt a jar; I spoke to Mr. Bardin; I think we have struck a stone; the horses' were under slow motion at that time; immediately after that they stopped.” Gardner Cutting, another witness, testified: “I noticed Mr. Butler before the car came along; he stopped a moment or two at the corner of the church; then he crossed the walk; I should judge he went about there but past the tracks; he stood there and waived his hand as a signal to the car; once that I know of, he had a cane in his hand; when he signaled in that way with his hand and cane the horses were about 100 feet from him; they were trotting six miles an hour when he signaled; the horses kind of slowed up, and up to the time the horses were crossing this crossing they were walking an ordinary walk.”

It seems from the evidence that Donnelly generally discharged duties of conductor, and driver, upon the cars, but according to the evidence of the plaintiff, a boy was driving at the time of the causalty, and Donnelly stood near him. John Donnelly, the conductor, was examined as a witness, and in several material particulars, testified in direct conflict with the version of the transaction given by the plaintiff, and the other witnesses who were produced by him upon the trial. Donnelly testified as follows-John Donnelly, sworn for defendant, testified:

I reside between Sandy Hill and Glens Falls; on Thanksgiving day last, my business was street car driver and conductor ; I saw plaintiff on Thanksgiving day last; I think the car 1 was driving on that day was No. 5, S. D. Kendrick, I am not positive; I was present at this accident; in the car there were seven or eight passengers, and two or three gentlemen on the rear platform, and one man on the front platform with me; besides that on the front platform I had two five-gallon oyster kegs, that set on the left of me, and on top of those kegs a large package, that a young man named Brower, a clerk in Wurtenburg’s store, had pfit on for me to take to Glens Falls, and in addition to that this young man had a roll of oil cloth, one and one half or two yards wide; he stood on the left hand side of this package, with his arm around the oil cloth; that, I think was all I had on the car at the time; as I came to this cross-walk at the south of the Methodist church, there is a little incline there bearing north; the team at that point would voluntarily start on a trot; they had been so trained, to get headway to ascend to the bridge; about the time they started on a trot I saw a man standing on the upper cross-walk; I spoke to the boy Brower; the man at that time was standing; he had come from the west sidewalk, and was standing facing nearly north-east, so that he was not looking towards the car when I first observed him; when the horses started on a trot, this man turned around and looked towards the car; he had a cane in his hand and changed hands with that cane and placed it in his pocket or by his side, the end sticking up; he crossed the track; the team was going on a trot; I was whipping the grey horse that is lazy, with a whip; as he crossed the track I should think he was from six to ten feet from the horses; I was going a pretty rapid gait, and he turned then to make for the car; that was the first intimation I had of the man wanting to get on; and as he started across, I didn’t know but he was going to continue on, and I was six to ten feet from him; he turned then and made for the car; I had the lines in my left hand and whip in the right hand, and I motioned to him with the whip and said, “hold on, don’t try to get on here, I will wait for you on the bridge; ” and by that time the man had caught hold of the car, and I saw he had fell and I applied the brake and got off to see if he was hurt, and in my haste I didn’t set the dog that holds the brake, and consequently the car started down the grade, and I jumped on again and applied the brake and set the dog.

Q. Who had hold of the lines at that time? A. I think the young man Brower had hold of the lines; I got off and helped carry the man into Clancey’s bakery, and somebody said go and get the doctor; the man was apparently hurt; and I spoke several times about getting the doctor, and somebody said the doctor was coming, and I saw I could do no good there, and continued on my journey; the ladies didn’t get back on the car.

Q. Where was Butler when you saw the first indication to you that he wanted to get on the car? Objection made,, but overruled. A. He was on the east side of the track.

Q. How near to the track as he stood there? A. I should, say three feet from it.

Q. At that time, where was the car with reference to that:, walk? A. The car at that time was probably the horses’ length from the walk; he crossed just ahead of my horses;, he started when six to ten feet of him, and the speed I was. going I got nearly to him before he crossed the track.

Q. After you discovered the first indication that Butler-intended to enter that car, what did you do, if anything, towards slowing up that car? A. I didn’t slow up at all; Í didn’t slacken my speed; I merely waived my whip at him and told him not to get on there, that I would wait for him on the bridge.

Q. Where, with reference to those two walks, did the-horses first commence to trot? A. I think as soon as they struck the walk below the church, along by Hodgman’s; that cross-walk was about the place the horses commenced to trot; they usually start voluntarily there.

Q. Was there any slowing up to your knowledge of the-speed of those horses at any place between those two walks?" A. No, sir.

Q. Was there until after the plaintiff was struck? A.. No, sir.

Q. Those horses of different colors? A. Yes, sir.

Q. One of them gray? A. The middle one was gray, and. I think the nigh one black, and the off one roan or chestnut-

Q. The gray was a large horse? A. Yes, sir.

Q. And instead of slowing up, what did you do, if anything, to increase your speed? A. I continued to slap them, with the whip.

Q. Did you at any time strike or slap the horses with your lines? A. Not that I remember; I used my whip; in. ascending the hill I usually have my lines taut if anything: happens; we have a double thill on, and the horses can generally stop a car without applying any brake.

Q. Will you describe the way in which those horses were hitched on to that car, and how much space they occupied across the street? A. They were hitched on what is known as a three-horse evener, connected with a heavy pair of shafts; the center horse is between those shafts, and the-horse on each side outside of them, with the three-horse evener attached to the shafts; on the left-hand side is a pair of whiffle-trees, and on the right-hand of it is a single whiffletree attached to the evener. _ " _

_ _ Q Are those whiffle-trees as long as the car is wide? A. I think full as long or longer.

Q. And the three horses occupied as much space in the road as the car, or more? A. Yes, sir.

Q. In what direction was Butler moving when you first saw him attempt to get on the car? A. He was moving in. a southerly direction; he had crossed the track and faced south, and made a lunge to grab the car; the moment I saw bim turn to come towards the car I motioned to him with the whip and sung out, “Don’t try to get on here, I will wait for you on the bridge;” about the time that was uttered, he grabbed hold of the car and the car pulled him right over; the man never got his foot on the platform at all, or the step. .

Q. How was you standing? A. A little to the left, behind the brake.

Q. Either of your feet on the step? A. Ho, sir, neither of' them.

Frederick A. Brower, who, according to the plaintiff’s, evidence, was driving the horse when the accident occurred, was examined as a witness, and, in the main, sustained. Donnelly’s statement. -

Other witnesses were produced upon the trial, by the respective parties, and the case presents the conflict in the evidence, usual in cases of this nature.

-Upon the facts as stated by the plaintiff, and the witnesses-who support his theory, it would seem that the act of the servant m charge of the team and the car, in starting the-team suddenly, just as the plaintiff was in the act of entering the car, and thereby causing the sudden jerk, which threw him to the ground, was a negligent act, and wholly unjustifiable. Eppendorf v. B. C. and N. R. R. Co., 69 N. Y., 195; Roberts v. Johnson, 58 id., 613; Maher v. C. P. N. and E. R. R. R. Co., 67 id., 52, Hayes v. The Forty-Second Street R. R. Co., 14 N. Y. Week. Dig., 28; McGlynn v. The Brooklyn C. R. R. Co., 6 N. Y. State Rep., 51.

The evidence of Donnelly, indicated that he saw plaintiff, when in the act of entering the car, but states that he warned him against the attempt at that place. Whether any such warning was given was one of the questions at-the trial which was involved in the conflict in the evidence, and therefore it became the province of the jury to settle such questions, which they did by their verdict.

Assuming that the jury were justified by the evidence in accepting the plaintiff’s theory in regard to the transaction, we fail to discover wherein the plaintiff was chargeable with any negligence which contributed to the injury of which he complains, within the principle settled by the: adjudications referred to.

It seems to us that the case was one eminently proper for the consideration and determination of the jury, upon the question as to whether negligence was attributable to the-defendant’s servants, and also whether the plaintiff was chargeable with contributory negligence. In regard to the rules and regulations which, as claimed by the defendant, were in the car, we fail to perceive wherein the plaintiff" was shown to have violated the same, assuming, as we think we must, that the plaintiff’s evidence is reliable, and ■that the jury credited it. It is not probable that the plaintiff saw such rules upon the occasion in question.

It does not seem reasonable to assume, as matter of law, that a person who, in an orderly way, attempts to enter a street car as a passenger, is to be regarded a trespasser, until a special contract has been made with the conductor, based upon the payment of the required fare. Where the passenger refuses to pay the fare upon request, he may be ejected in a proper manner, as well as for improper conduct, by which he forfeits his right to remain m the car.

We have examined the charge of the judge at the trial, and the rulings made during its progress, and discover no error which calls for a reversal of the judgment. And the same must be affirmed, with costs.

Learned, P, J., and Landon, J., concur.  