
    Frank Seitz, Resp’t, v. The Dry Dock, East Broadway & Battery Railroad Company, App’lt.
    
      (New York Common Pleas, General Term
    
    
      Filed June 2, 1890.)
    
    1. Railroads — Negligence.
    _ In an action for personal injuries, plaintiff and his wife testified that hesignalled to the driver, and the car coming to a full stop he attenuated to enter,_ when the car suddenly started and threw him down. Some of' his witnesses testified that the car did not stop; but slackened speed sufficient to enable a person to enter without risk. Defendant’s witnesses testified that it did not stop or slacken speed, but was proceeding at the usual rate of speed. The court charged that if the car had not come to a full stop, the verdict should be for defendant. Held, that the case was properly submitted to the jury, and their determination of the facts should not be disturbed.
    3. Same.
    Plaintiff was not guilty in law of contributory negligence in attempting to board the car under the circumstances.
    3. Same — Damages.
    While the absence of evidence of the value of plaintiff’s earnings will prevent a recovery of substantial damages on that account, he is entitled to nominal damages for the loss of such earnings, and therefore it is not error to instruct the jury that they may take into consideration the loss of earnings in assessing the damages. To make an objection to the right of recovery of more than nominal' damages available, a specific request to direct the jury to limit the recovery for such loss of earnings to nominal damages only, and an exception to a refusal to so direct, is necessary.
    
      Appeal from judgment of the general term of the city court, affirming a judgment of that court in favor of plaintiff for $500 damages.
    Action for personal injuries alleged to have been sustained by the plaintiff through the carelessness and negligence of the defendant’s servants, while he was attempting to board one of its street cars.
    
      Orlando L. Stewart, for resp’t; John M. Scribner (Robinson, Scribner & Bright), for app’lt.
   Bischoff, J.

On the 19th day of April, 1888, on Clinton street, between Division and Grand, in the city of New York, plaintiff intending to become a passenger in one of defendant’s cars, while attempting to board the same, sustained severe injuries, some of them being of a permanent nature. Plaintiff testified that before attempting to board the car he signalled to the driver, and the car thereupon coming to a full stop he attempted to enter it, and having hold of the guard-rails, and one foot on the step of the rear platform, the car suddenly started forward, whereby he was prevented from entering, thrown violently to the ground, dragged for a space of one hundred feet or more, and thereby received the injuries of which he complains. In his narrative of the facts relating to the accident he was fully corroborated by his wife, who was a witness on his behalf. Other witnesses for the plaintiff, however, testified that the car at the time when the plaintiff attempted to board the same had not come to a full stop, but had sufficiently slackened its speed to enable any person to enter it without incurring risk or injury. Defendant’s witnesses, on the other hand, testified that the car had neither slackened its speed, or come to a full stop, but was moving along at the ordinary rate of speed. Upon this conflict of testimony the trial justice declined to direct a dismissal of the complaint or a verdict for the defendant, but submitted the question of defendant’s negligence and the plaintiff’s contributory negligence to the jury for their determination. While it is true as appears from the testimony that some of the plaintiff’s witnesses contradicted the testimony of others to the effect that the car had come to a full stop, and asserted that the rate of speed had sufficiently slackened to enable any person to board the car, yet it is equally true that these witnesses contradicted the testimony of the defendant’s witnesses to the effect that the car had neither stopped or slackened its speed, but was proceeding at the rate common to street cars.

Outside of defendant’s objection to so much of the trial justice’s charge as relates to recovery by the plaintiff of loss of earnings derived from his ordinary avocation of life, defendant’s exceptions grouped together present the question as to whether or not it was contributory negligence, as matter of law, for the plaintiff to attempt to board defendant’s car while the same was in motion. At the request of the defendant the trial justice charged the jury, that if they believed that the car had not come to a full stop when the plaintiff attempted to board it they must find a verdict for the defendant. And inasmuch as .the jury found for the plaintiff they must, in the light of the trial justice’s instructions, be deemed to-have accepted as true, the statement of the plaintiff and his wife, that the car had come to a full stop. The jury were the sole judges of the facts, and with their determination upon the conflicting testimony of witnesses this court will not interfere, unless to prevent an abuse of the jury’s province. There is nothing in the evidence to indicate that the jury were moved in their finding either by prejudice against the défendant, or by undue sympathy for the plaintiff. The defendant’s contention that the plaintiff was guilty in law of contributory negligence in attempting to board the car while in motion, though at a rate of speed which made it reasonably safe for any person to attempt to board it, is not well founded. This precise question was recently passed upon by the supreme court at a general term in the first department, and many previously reported cases duly considered. Morison v. Broadway & Seventh Avenue Railroad Co., N. Y. Law J., March 3, 1890; 28 N. Y. State Rep., 498. The decision in that case is to the effect that it is not always contributory negligence for a party to attempt to get on the rear platform of a car after signalling the driver to stop, and the car has slowed up, if it appears from the evidence that the accident was caused by the sudden starting and change of motion of the car after the plaintiff has attempted to board it Citing Eppendorf v. Brooklyn City & N. R. R. Co., 69 N. Y., 195 ; and Morison v. N. Y. Central R. R. Co., 63 N. Y., 643.

In delivering the opinion of the court, Judge Daniels says: “ By giving the signal to the driver he (the driver) was apprised of the fact that the plaintiff desired to take passage on the car. And having slackened 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. Where such 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 is of and in itself negligence.

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In this case, as the driver understood that the plaintiff was about to go on board of the car it was negligent for him to start up the car with a jerk before the plaintiff was safely on board.”

In these views I concur. The defendant’s exception to the charge of the trial justice that the plaintiff may recover for loss of earnings resulting from his inability to pursue his ordinary avocations is equally unavailing. It appears from the evidence that plaintiff, for a period of three weeks or more, was prevented, by reason of the injuries sustained, from pursuing his ordinary occupation, which was that of a shoemaker; but no evidence of the value of his earnings was given. While the absence of such evidence prevented plaintiff’s recovery of substantial damages on that account, he was nevertheless entitled to nominal damages for the loss of such earnings, as the law will not assume the plaintiff’s services to have been wholly valueless.

The trial justice cannot, therefore, be said to have committed error in his instructions to the jury that in assessing the amount of damages to be awarded to the plaintiff they might take into consideration his loss of earnings by reason of the injury. To have made the objection to the plaintiff’s right of recovery of more than nominal damages for loss of earnings available to the defendant, a specific request that the jury be directed to limit the plaintiff’s recovery for the loss of such earnings to nominal damages only, was necessary; and an exception to the refusal of the trial justice so to direct would have presented the defendant’s objection to this court for review. No such request, and no such exception appear in the case, and there is nothing to indicate that in assessing the amount of damages awarded to the plaintiff the jury allowed him more than a nominal sum for the loss of his earnings. Feeney v. Long Island R. R. Co., 116 N. Y., 377; 26 N. Y. State Rep., 729.

The judgment and order appealed from should therefore be affirmed, with costs to the respondent

Larremobe, Oh. J., and Daly, J., concur.  