
    Mary O’Toole, Resp’t, v. The Central Park, N. & E. R. R. R. Co.. App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Negligence—Street railroads.
    Plaintiff was injured while standing on the sidewalk in front of defendant’s depot, and between two of its tracks, having with her a baby and a little girl. Her testimony tended to show that two cars were approaching rapidly, and deeming herself in danger she motioned the driver of one to stop, but he did not do so and she was knocked down. Defendant’s testimony was to the effect that both cars had come to a stop, and that plaintiff crossed the track, and seeing a car coming ran back and against the car in question and was thereby injured. Held, that a verdict in favor of plaintiff would not be disturbed.
    
      2. Same—Contblbutoby negligence.
    Plaintiff had a right to stand upon the sidewalk, although it was in front of the depot, and contributory negligence could not be predicated from the fact that she stood there.
    Appeal from judgment entered on verdict of a jury and from order denying motion for new trial.
    Vanderpoel, Green & Cuming, for app’lt; J. F. Higgins, for resp’t.
   Van Brunt, P. J.

The accident out of which this action arose occurred on an afternoon in March, 1888, in front of the depot of the defendant at Fifty-third street and Tenth avenue.

It appears from the evidence in the case that at this point the cars of the defendant ran upon a curve over the sidewalk for the purpose of entering the depot.

Desiring to enter a car the plaintiff stood in front of the depot between two of the tracks of the defendant, having her baby in her arms and a little girl alongside of her waiting for a car. As she stood there she saw two 'cars approaching, one of them according to her testimony coming very swiftly. Finding herself exposed to danger she motioned to the driver to stop, which he did not do and she was knocked down by the car and injured.

Upon the part of the defendant testimony was offered tending to show that at the time of the happening of the accident both cars had "actually come to a stop, and that instead of the cars running into the plaintiff, she first attempted to cross the track and seeing a car coming ran back and ran into the car and by the shock was knocked down upon her knees, and that is the manner in which it is claimed by the defendant the plaintiff was injured, if at all.

The defendant by the witnesses examined by it certainly offered strong evidence to show that the plaintiff must have been mistaken in her version of the cause of the accident; but this fact would not have justified the court in taking the case from the jury.

If the plaintiff’s evidence was true then the jury would have been entitled to find that the defendant was guilty of negligence and also that the plaintiff had not been guilty of negligence in any degree contributing to the happening of the accident.

It would appear that the accident happened upon the sidewalk in front of the depot. The plaintiff had a right to be there; the defendant did not own the sidewalk. It was a proper place for her to stand and she had a right to assume that the railroad company in housing their cars by crossing the sidewalk would show some respect at least to the rights of foot passengers. Therefore from the fact of her standing upon this sidewalk, although it was in front of the depot, no claim of contributory negligence could be predicated. Being rightfully in this position with her two infant children she is compelled to act because of what she believed to be the danger she was placed in by the rapid approach on the curve going into the depot of two of the cars of the defendant, a danger if her story is correct not imaginary but actual; and if she failed to pursue the very best course which under the circumstances she might have done, if the defendants were guilty of negligence in the management of their cars, it does not deprive her of her right to recover.

Jt is urged upon the part of the defendant that the supposed peril in which the plaintiff was placed was not actual or real, but merely fancied or visionary. But this assertion depends for its support upon the acceptance of the testimony upon the part of the defendant that the car had come to a full stop and that the driver was in full control of his car and horses.

W"e think the jury had a right to adopt a different version of the evidence, in view of the testimony given on the part of the plaintiff, and this court cannot interfere with the conclusion arrived at.

It is urged that the court refused to charge various of the defendant’s requests, and error was thereby committed. But upon an examination of the record it will be seen that in the charge all these requests, so far as the defendant was entitled to have them charged, was covered by the language of the court, and it was not necessary that the court should repeat propositions which it had already submitted to the jury.

We cannot say that the damages were excessive. The evidence upon the part of the plaintiff showed injury for which she was entitled to compensation, and the verdict was not of that character which showed passion or prejudice, and unless such fact appears because of the unreasonableness of the verdict, it cannot be set aside upon the ground that the damages are excessive.

The judgment should be affirmed, with costs.

Daniels and Brady, JJ., concur..  