
    Johanna Loewe, as Administratrix, etc., of Richard Loewe, Deceased, Respondent, v. New York City Railway Company, Appellant.
    First Department,
    November 8, 1907.
    Railroad—negligence — passenger thrown from, car platform at curve — erroneous charge.
    In an action to recover for the death of a passenger on a street railroad who was thrown from the rear .platform of a car while rounding a slight curve at an unusual rate of speed, it is error to charge that if the jury find that the car was propelled at an unusual speed it was the duty of the defendant’s servant to give the intestate notice o£ that fact or to indicate to him. in some way that he must exercise increased care at that point for his own safety.
    Ingraham, J., and Patterson, P. J., concur in result, with opinion, upon the ground that the finding that the [defendant was negligent was against the weight of evidence.
    Appeal by the defendant, the New York City Bailway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of January, 1907, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 9th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry L. Scheuerman [Bayard H. Ames with him on the brief] for the appellant.
    
      William J. Lippmann, for the respondent.
   Laughlin, J.:

This is a statutory action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the-defendant in operating a car upon which he was a passenger, resulting in liis being thrown from the car while it was passing around a slight curve in Central Park on the track traversing. Central Park from Eighty-sixth, street. On the west to Eighty-fifth street on the east, known as the Eighty-sixth Street Crosstown line.

I am of opinion that the evidence tending to show that the car was operated a.t an unusual rate of speed while passing around this curve was sufficient to make the question of the defendant’s negligence one for 'the jury, but I think the learned trial court committed an error in instructing the jury, which necessitates' a new-trial. In the main charge, the court'instructed .the jury that “ If you find that the car in question was propelled atan unusual rate of speed .then it became the duty of the defendant’s servants to give plaintiff’s intestate notice of that fact or indicate to liim in some way that he must exercise at that point increased care for his own safety.” To this charge-the counsel for the defendant duly excepted. The effect Of the charge was' to instruct the jury, as matter of law, that the defendant knew or should have known that the curve was dangerous and that it owed, an imperative duty to its passengers to warn them, provided the car was operated along the track around the curve at an unusual rate of speed. The jury might have found that in propelling, the-car around the curve at an unusual speed ordinary care required that the passengers who were standing be notified, but I am of opinion that it could not be said that the curve was such that, as matter of law, the duty rested upon the defendant of notifying the passengers on approaching, the curve at an unusual rate of speed. . -

The order, therefore, should be reversed and a new trial granted* with .costs to appellant to abide the event.

Claeke and Houghton, JJ., concurred.

Ingbaham, J.:

■ The plaintiff’s intestate was a passenger upon one of the surface ears of the defendant’s road through one of the transverse roads of Central Park at Eighty-sixth street. This road crosses Central Park, there being a slight curve to the west after the road leaves Eighth avenue and returning by a slight curve to the east. This curve is what is called “acurve'of 600 feet radius,” but the curve is a slight one, without any sudden changes. The car started from Eighth avenue to cross the park about eleven o’clock at night on April 28, 1904. The deceased got upon the back platform of the car and stood with his back to the dashboard with his right hand on the stanchion that supports the roof near'the steps to the street. The only witness to the accident called by the plaintiff was a passenger who stood next to the deceased. He testified that after the car left Eighth avenue it started to go. at a very great speed ; that the car was going fast around the curve, and the first thing that he saw was that the deceased’s heels were in the air and he turned right around and then fell off; that the witness was thrown forward and his side went against what he called the motor box; that the passengers hollowed and the conductor gave a signal to stop and the car came to a standstill about seventy-five feet from the place, where the deceased fell off; that the deceased had a .newspaper and a cigarette in his left hand and was holding on to this stanchion with his right hand; that after the other passengers hollowed, but not immediately, the conductor gave the three bells which caused the car to come to a stop; that at the time the conductor was on the inside collecting fares. On behalf of the defendant several passengers testified that the car was going at its usual speed; and that there was no unusual jar or jolting- going around the curve; and there-was also testimony tending to show that the deceased was intoxicated at the time.

There was nothing in the situation that would require the employees of the defendant to. anticipate that a passenger using ordinary care would be thrown from the car in going around such a curve and there is no evidence that the jar was sufficient to cause a man in the exercise of ordinary care to fall off the platform, except that of a witness who testified that he was thrown against the motor box of the car; and the'strong preponderance, of evidence is that there was no improper or dangerous management of the car.

.The plaintiff relies upon the case of Lucas v. Met. St. R. Co. (56 App. Div. 405), but it is clear that "the facts in that case are quite different from the facts here.

This case is very much like that of Fogerty v. Union Railway Co. (56 App. Div. 624; affd., 171 N. Y. 670); and the discussion.of that case in Lucas v. Met. St. R. Co. shows that this case comes within the Fogerty case.

I think, therefore, .that the finding of the jury that the' defendant was negligent was against the weight of evidence and for that reason, the order denying the motion for a new trial must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J,, concurred.,

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  