DEAN G. EDWARDS, Plaintiff,
NEW JERSEY AND HUDSON RIVER RAILWAY AND FERRY COMPANY, Defendant.
MOTION by the plaintiff, Dean G. Edwards, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term in December, 1910.
Burt L. Rich, for the plaintiff.
C. E. Thornall, for the defendant.
It is not contributory negligence as matter of law for a passenger to ride on the running board of an open trolley car. (Kramer v. Brooklyn Heights R. R. Co., 190 N.Y. 310.) The plaintiff had been warned by the conductor on approaching the first trestle, and that warning, aside from the general duty of the defendant to give warning of unknown dangers, may have been considered by him as an assurance of safety. The conductor knew that the plaintiff and others had stepped down on the running board after passing the first trestle. The defendant's evidence tends to show that the conductor gave warning of the approach to the bridge where the accident happened, but that evidence was disputed and presented a question of fact for the jury. If that question were resolved in the plaintiff's favor, it would be at least a question of fact whether, considering the speed of the car, its swaying motion, and the short distance between the running board and the bridge girder, the conductor was negligent in not repeating the warning. If a passenger, permitted to ride on a running board, has a right to rely upon being warned of an unknown danger, and if the first warning given was any assurance that it would be repeated in the case of a like danger, the plaintiff's failure to observe the girder in time to avoid being hit was not negligence as matter of law.
The plaintiff had the choice of riding on the running board or in a cramped and uncomfortable position between the seats.
He testified that the car was so crowded that people were sitting on the edges of the seats with their knees against the backs of the seats in front, and that because of that fact he was unable to get a good foothold at the place where he stepped up into the car. Of course, if he had gained a position of safety and then had voluntarily abandoned it for a place of danger a different question might arise, but, upon his evidence, the defendant must be deemed to have assented to his resuming his place on the running board, and it cannot be said as matter of law that in doing that he assumed any risk, except of known dangers and of the ordinary motion of the car.
The exceptions should be sustained and the motion for a new trial granted, with costs to plaintiff to abide the event.
CLARKE and SCOTT, JJ., concurred; INGRAHAM, P. J., and DOWLING, J., dissented.
INGRAHAM, P. J. (dissenting):
I think the plaintiff was guilty of contributory negligence which justified the court in dismissing the complaint.
The plaintiff boarded a car at the village of Hackensack in the State of New Jersey. The car was an open car with a running board upon the side by which passengers reached the seats in the middle of the car. The seats were all occupied when the plaintiff boarded the car and there were some persons standing between the seats in the car. Plaintiff and several others stood upon this running board and as the car proceeded the conductor came along the running board and told those standing on it to step inside as the car was approaching a trestle. Those upon the running board obeyed this direction and stepped inside the car. The car passed the trestle in safety when the plaintiff and others again stepped out from the interior of the car upon ...