
    Daniel L. G. Frobisher, Resp’t, v. Fifth Avenue Transportation Company, Limited, App’lt.
    
      (<Supreme Court, General Term, First Department,
    
    
      Filed November 16, 1894.)
    
    1. Negligence—Contributory.
    It is not negligence, as matter of law, for a passenger, after signaling the driver to stop, to attempt to enter the stage while it is moving very slowly.
    2. Same—City ordinance.
    A city ordinance, which forbids stages from stopping at the intersection of streets, is no defense to an action for injury to a passenger, who fell and was dragged while attempting to enter a moving stage.
    3. Same—Question foe jury.
    Where there is evidence that both open and closed steps are used on stages and that closed steps are safer, the question whether it is negligence to use open instead of closed steps, is one for the jury.
    4. Damages—Special.
    Under an allegation sufficient to give defendant notice, loss in business, resulting from personal injuries, may be recovered as special damages.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    
      William Irwin, for app’lt; J. Tredwell Richards, for resp't.
   Follett, J.

This action was brought to recover damages arising from a personal injury caused, it is alleged, by the negligence of the defendant and of its servants. The defendant did not move for a nonsuit, or that a verdict be directed in its favor, and the only questions presented are those raised by the exceptions taken to the admission and exclusion of evidence, to the charge, and to the refusals to charge. On the 14th of October, 1889, the plaintiff, while attempting to enter one of defendant’s stages, fell from the step, breaking the radius of his left arm, near the wrist, and dislocating his left shoulder.- The step was an open one, having no back or riser; and it is alleged that the defendant was negligent in not using one with a riser or back, which would have rendered it impossible for the foot of a passenger to slip forward from and beyond the step. It is also alleged that the driver was negligent in not coming to a full stop when the plaintiff attempted to enter the stage, in starting suddenly while he was on the step, and in dragging him so far after he fell. The stage was going uptown. The plaintiff was standing on the west side of Fifth avenue, near the corner of Twenty-third street. He testified that he signaled the driver that he wished to ride, who recognized him, and pulled up his horses, but did not come to a full stop. He said that, when he attempted to enter the stage, its motion was hardly perceptible; that he took hold of the brace or handle at the right of the door with his right hand, and was standing on the step, when the stage ‘‘started up with a big jerk,” throwing him violently backward; that his left foot slipped over the step, and caught; that he fell, and was dragged at least 75 feet, and over the tracks of th e Twenty -Third Street Eailroad. The driver of the stage had died before the trial, and the plaintiff’s evidence as to the manner in which he attempted to enter the stage was not contradicted. One of the defendant’s employes testified that, when the stage was between the south crossing at Twenty-Third street and the track of the Twenty-Tbird Street Eailroad, the plaintiff ran forward, and got on the step,' and was caught by his foot, and dragged about 10 feet; that, at the time, the stage was in motion, the driver was walking his horses across Twenty-Third street He did not know whether the plaintiff had signaled the driver lower down. Frost, a policeman, called by the defendant, testified that he saw the plaintiff get on the step of the stage when it was south of the Twenty-Third street crossing. “ He got on below that. I had seen him getting on. I saw him step on the stage after it started. He pulled on the door until he put his foot through; slipped through. The stage was in motion.” This witness says that the plaintiff was dragged 15 or 20 feet.

The evidence that the plaintiff attempted to enter the stage after having signaled the driver to stop, and before it reached the crossing, while it was moving slowly, is quite sufficient to warrant the jury in finding those facts. The defendant insists that the plaintiff was negligent, as a matter of law, in attempting to enter the stage while it was in motion, and that the court erred in refusing so to charge. If it be true, as testified by the plaintiff, that the driver had nearly stopped the stage, and that its motion was hardly perceptible, we do not think that, under such circumstances, it could be held as a matter of law that the plaintiff was guilty of contributory negligence in attempting to enter the’stage. There was evidence that the stages and coaches used by others have steps with risers or backs, protecting the passengers from the danger of slipping forward from the step. Whether the defendant was negligent in the use of a step without a riser or back, and whether its driver was negligent in not stopping the stage so as to permit the plaintiff to enter, and in starting it suddenly when he was on the step, were issues fairly submitted to the jury by the court in its charge, and they found for the plaintiff.

The defendant asked the court to charge that it was not negligence on the part of the defendant or its servants not to stop the stage in Twenty-third street, where it crosses Fifth avenue. The court refused to express any opinion on that question. There is no evidence tending to show that the plaintiff asked the driver to stop the stage after it had passed the south line of Twenty-third street The only complaint made in respect to the driver’s not stopping the stage before crossing Twenty-third street is that, after the plaintiff was caught, it should have been stopped before dragging him across the tracks of the Twenty-third street railroad. It was shown that an ordinance of the city forbids that a stage be stopped at the intersection of streets, so as to obstruct passage on any sidewalk or in the street. This ordinance, however, was not intended to apply in case it should be necessary to stop in order to save life, prevent a collision, or the infliction of an injury to persons.

The defendant requested the court to charge: (9) That there is no proof that the step of the stage, or the stage itself, was in any way defective.” “The Court: You have the evidence in regard to what might have been done with known appliances with respect to the step. (Defendant excepts.)”

By this request the court was asked to rule as a question of law that there was no evidence that the stage or its step was in any way defective. It was not asserted by the plaintiff that any part of the stage was defective except the step. The plaintiff’s foot slipped over and beyond the step, and was caught, and he fell, and was dragged by the moving stage, and was injured. Undoubtedly, the mere happening of the accident did not raise a presumption that the step was defectively constructed. But there was more evidence. Mulholland, who had been connected with the Stephenson car factory, of this city, for 34 years, was sworn in behalf of the plaintiff, and testified : “ Q. Has that company been building for use stages with solid backs or steps ? A. They have built steps with solid backs; yes, sir. Q. Steps with solid backs ? A. Yes, sir. Q. During the period you have been in business? A. They have; yes, sir. Q. And which steps are known in the trade, are .they ? A. This step is known in the trade; yes, sir. Q. Step with a solid back? A. Yes, sir. Q, And was known in 1889 oand the fall of that year? A. We have built some since that. :Q. At that time it was well known as a form of construction, was it not? A. This was one of the forms of construction ; yes, sir. Q. Apart from the diagram, steps with solid backs were well known as a form of construction ? A. Hot apart from this. Q. I mean, without looking at the diagram [of a closed step], you, in your memory, know that steps to stages having solid backs were a well-known form of construction in the trade? A. Yes, sir. Cross-examined by Mr. Erwin: Q. Were those the only kind of steps built? A. No, sir; it is not. Q. Were there not some without a solid back? A. Yes, sir. Q. Were they very generally used? A. In a few cases we had an open step, what we call an open step. Q. With rubber on the step, or without it? A. Well, without the rubber. Q. And those were used in other forms of stages? A. Yes, sir. Q. Just as general as the solid back ones. A. This is known as a stage step. The other is something new. That is the only step made for large cities. Q. The open step ? A. Yes, sir. The first that was made, I believe, was for Baltimore. They were used in the city of Baltimore. Q. And the open step, you say, was made for large cities ? A. Had been made for the city of Baltimore. That is a pretty large city. Q. And have been used in this city. A. I have seen them in the city; yes, sir.

Hall, a car and stage builder, sworn for the defendant, testified that the step in use on that stage was the kind usually used, and that, in his opinion, it was safe and convenient. On the cross-examination he testified : “ Q. Wouldn’t a solid back or riser to the step prevent the foot from going through and catching under the step there ? Is there any way in which the foot could get through that step if there was a solid back to it ? A. No; not if there was a solid back there. I never saw a stage with a solid back to its step. I never heard of one, except these hotel coaches. They are inclosed all in. Q. You have seen stages that have solid backs to the steps ? A. Yes; but not on an ordinary vehicle.”

Under this state of the evidence, it was not error for the court to refuse to rule as a matter of law that there was no evidence that the step was defective, and the question was properly left as one of fact to the jury.

There is but a single exception to the admission of evidence that is deserving of discussion. The plaintiff was asked : “ What was your income a year, prior to this injury, from your business? (Objected to, on the ground that there is no allegation of special damages in the complaint. Objection overruled. Exception.)”

It is alleged in the complaint that the plaintiff has become disabled for life to such an extent as to seriously interfere with the active prosecution of his business.” This is certainly not a very specific allegation of special damages resulting from an injury to the plaintiff’s business, but it was sufficient to give defendant notice that an attempt would be made to recover such damages; and, if it had desired a more definite allegation, it should have moved that the complaint be made more definite and certain in this particular. Ehrgott v. Mayor, etc., 96 N. Y. 264. The damages awarded in this case were not very large, and it can hardly be asserted that much, if anything, was awarded to the plaintiff for loss of business.

The judgment and order should be affirmed, with costs.

Parker, J., concurs.

Van Brunt, P. J.

(dissenting).—I cannot concur in the conclusion arrived at by Mr. Justice Follett as to the questions raised by this appeal. It seems to me that it was clear error for the court to refuse to charge that there was no proof that the step of the stage was in any way defective. This error was accentuated by the reply of the court to the request. He said to the jury : “You have heard the evidence in regard to what might have been done with known appliances with respect to the stage,”—thereby charging the jury that it there were any known appliances which might possibly have made this stage safer, in view of the knowledge obtained from the happening of this accident, the defendant was guilty of negligence; thus presenting a rule of diligence for which I have been unable to find any precedent, and for which no authority is claimed by the respondent. The evidence was conclusive, even according to the testimony of the plaintiff’s witness on this subject, that this was an ordinary mode of construction. It is true he testifies that there were other modes of construction by which the back of the step was filled in, but it is not contended that that mode of construction was adopted for the purpose of meeting results such as were produced in the case at bar. It is probably true that the plaintiff might not have been so severely injured had this step had a solid back; but there is no particle of evidence that any accident of this kind had ever happened before. Under the rule as settled by a large number of cases, of which the following are merely samples, where an appliance has been used for a considerable length of time, and has not been found defective, and no accident has happened in consequence of it, it is not negligent to continue its use. Lafflin v. Buff. & S. W. R. R. Co., 106 N. Y. 136; 9 St. Rep. 596; Crocheron v. North Shore S. I. Ferry Co., 56 N. Y. 656; Loftus v. Union Ferry Co., 84 N. Y. 455; Tonkins v. N. Y. Ferry Co., 47 Hun, 562; 14 St. Rep. 874. The establishment of any other rule would be requiring of transportation companies a measure of diligence with which it would be almost impossible for them to comply. It is undoubtedly true, as the expert witness Mulholland testifies, that steps with risers or solid backs were a well-known mode of construction in building stages at that time. But he also testifies that these were not the only kind of steps built; that open steps were used in other forms of stages; that the closed step was something new; and that open steps were made for large cities. Without considering the testimony upon the part of the defendant in this respect, it is clear that the stage in question was built after the ordinary manner of construction; and that the jury had no right to find, as they were virtually directed to do, that the defendant was negligent because of this method of construction.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.  