APPEAL by the defendant, Leslie Sutherland, as receiver, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 11th day of May, 1911, and also from an order entered in said clerk's office on the 12th day of June, 1911, denying the defendant's motion for a new trial.
Leverett F. Crumb, for the appellant.
Sydney A. Syme, for the respondent.
JENKS, P. J.:
The action is for negligence. The court charged, without exception or request for other instruction: 'The only ground upon which a verdict can be given to the plaintiff, and the only charge that the plaintiff makes against the defendant, is that after the plaintiff had reached a safe place upon this car, and was about to take his seat thereon as a passenger, that the conductor wrongfully, intentionally, recklessly, wantonly, by threats and hostile demonstrations, drove him from the car, and caused him to fall.' The plaintiff is a man 28 years old. The scene of the accident was a street in the city of Yonkers, and the time was about 6 o'clock, September 10, 1910. There is no dispute that the plaintiff as a passenger boarded the open or summer car of the defendant on the so-called 'off side,' that nearest to the track for cars coming in the opposite direction. At that time the running board was down. The plaintiff's version is as follows: When he boarded the car it was at a standstill. The side rail was 'standing way up high' so that he passed into the car under it without interference therefrom. When he was about to take a seat, or had taken it, the conductor, who was inside of the car and had been looking towards the station, turned and saw him, whereupon the conductor jumped towards him, called him the vilest
names and ordered him to 'jump right off now.' At that time the plaintiff was sitting down, and the conductor was standing up, with a seat or an aisle between them, and as the conductor approached the plaintiff with his fists up, the plaintiff drew himself back towards the outside of the car, holding on to the bar rail and avoiding the conductor's fists, when one foot slipped down, followed by the other as he was still clinging on to the bar, then the board fell right under his feet and he went down with his face up. The conductor testifies that he was on the rear platform, that the plaintiff ran and jumped upon this off side of the car while it was in motion, and hung on to the side rail which was down; that he called out to the plaintiff, asking him why he did such thing, but the plaintiff paid no attention and remained in the said position; that he saw the oncoming car, with its danger to the plaintiff; that thereupon he rang an emergency bell to stop the car, called to the plaintiff to get in under the rail, crossed to him, took hold of him, attempted to pull him into the car but failed, as the plaintiff released his hold and fell from his grasp. He denies the language and any threatening words or actions. There is no question but that the position of the plaintiff outside of the body of the car was perilous, in that the oncoming car probably would have struck him, for the space was very narrow between passing cars.
There are some strange features in the plaintiff's story. The conductor and the plaintiff were unknown to one another. Although the plaintiff says he entered the car at the wrong side, yet he also says that he had passed from the running board under the raised side rail and had taken his seat; only after he had done this the conductor, who had not been looking in his direction when he boarded the car, turned to see him and thereupon assailed him with vile language, threatened him with assault, made menacing motions and ordered him to 'jump right off' the car.
On the other hand, the version of the conductor has earmarks of probability. If the plaintiff had run after a moving car and had jumped on the off side, when the side rail was down, it was natural that the conductor would ask him why he did so. If he remained clinging on to the rail in a position of peril in
view of the oncoming car, it was natural that the conductor would attempt to avert the danger by calling to him to get under the rail into the car and would seek to save him from the danger by taking hold of him to pull him into the car. When, therefore, I find that the plaintiff is supported by but a single witness, a fellow-workman who is but slightly acquainted with English, and that the conductor is corroborated by a large number of witnesses who contradict the plaintiff in almost every detail, I think the verdict is against the evidence.
The support of the plaintiff is Fiuro, who corroborates the plaintiff save with respect to the position of the handrail, and who qualifies somewhat a previous statement that the conductor ordered the plaintiff to get off the car. Fourteen witnesses were called by the defendant. Outside of the motorman and conductor of the car, the motorman of the approaching car and an employee off duty who was riding beside the latter motorman, they appear as respectable persons with entire indifference between the parties. One was riding upon the front platform of the approaching car, two were passengers on the car itself, and the others were wayfarers in the city street, but observers close at hand. Not every witness contradicts each detail of the plaintiff's version, not every witness corroborates every feature of the story of the conductor, but the contradictions of the plaintiff are made in every instance by several, as are the corroborations of the conductor. There are witnesses who testify that the car was in motion when the plaintiff boarded it, that the side rail was down at the time and remained down, that the plaintiff never entered the car at all but remained clinging to the side rail, that the conductor asked him why he thus boarded the car, that the conductor rang the emergency bell, that he cried out to the plaintiff to 'get in under the rail,' and that he tried to help him into the car but could not. There is also evidence from some of the witnesses that there ...