Solomon v. Manhattan Ry. Co.

• Decision Date: 23 November 1886
• Citation: 103 N.Y. 437,9 N.E. 430
• Parties: SOLOMON, Adm'x, etc., v. MANHATTAN RY. CO.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 437

9 N.E. 430

SOLOMON, Adm'x, etc.,

v.MANHATTAN RY. CO.

Court of Appeals of New York.

November 23, 1886.

Action to recover damages for the death of the plaintiff's intestate through the defendant's negligence.

The action was originally tried at a circuit of the supreme court, and motions to dismiss the complaint made at the close of the plaintiff's case, and, at the close of the whole case, were denied by the court, and the case sent to the jury. A verdict was rendered for the plaintiff, but, upon appeal by the defendant, the judgment thereon was reversed by the general term, and a new trial ordered. See 31 Hun, 5. The decision of the general term was affirmed by the court of appeals. On the second trial at the circuit no actual examination of witnesses took place, but the record of the former trial, except the charge to the jury, was, by consent of counsel, submitted to the court, and a motion made upon the whole case to dismiss the complaint. The motion was granted, and the plaintiff appeals.

Geo. Putnam Smith, for appellant, Solomon, Adm'x, etc.

Robt. E. Deyo, for respondent, Manhattan Ry. Co.

ANDREWS, J.

It is undisputed that the train was in motion at the time the plaintiff's intestate attempted to enter it. It had been brought to a stop, according to the usual custom, on reaching the Chatham Square station, for the purpose of discharging and receiving passengers, and had started again before the deceased and the two men in front of him, hurrying from the Third-avenue train across the bridge, and down the steps to the station platform of the Second-avenue road, had reached the rear of the first car. It is also undisputed that the conductor, who was standing on the platform between the first and second cars, had given the signal to start the train, and had closed, or attempted to close, the gate before the first of the three men reached the car. The train, at this time, as we have said, had started, and was slowly moving, but with a constantly accelerated speed. The two men in advance of the intestate succeeded in safely boarding the train. The intestate was a few feet behind them. He attempted to get onto the platform of the car after the others. The evidence tends to show that he took hold of the stanchions of the car with both hands, and placed one foot upon the car platform, and was in the act of passing onto the car when the conductor closed the gate against the deceased, who, clinging to the car, or, possibly, being caught in some way by the gate, was carried along a few feet, until his body came in contact with a water-pipe extending horizontally at the end of the station platform, and received the injuries of which he subsequently died.

There is a conflict of evidence as to whether the gate had been fully closed before the two men in front of the intestate reached the car. The conductor testified that it was closed at that time, and was pushed open by them. Witnesses for the plaintiff testified that the conductor was closing the gate as the two men approached the car, and opened it for them to enter, and then closed it as the intestate was attemptint to get on. There is also some discrepancy in the evidence as to the distance from the car platform to the water-pipe at the end of the station platform when the intestate reached the car. One of the plaintiff's witnesses, who saw the whole transaction, testified that the distance was four or five feet, and other witnesses testified that it was ten feet. Wilson, a witness for the plaintiff, testified: ‘Although my glance was momentary, I saw him [deceased] constantly from the time he put his foot on the car until he struck the projection. In my best judgment, that may have been five feet, but i think it was about four feet, the distance.’ Haller, also a witness for the plaintiff, was asked: ‘The whole occurrence, from the time the conductor pulled the bell to start the car until Mr. Solomon struck against the projection and fell, occupied b but a very short space of time, did it not?’ He answered: ‘A very little time; quicker than I can tell you.’

In view of the undisputed fact that the car was moving when the deceased attempted to enter it, it is evident that the obstruction against which the deceased was carried was perilusly near, and that a collision was inevitable if the deceased should fail to get onto the car, and should be carried along a few feet in the position in which he was when the gate was closed. The station platform was lighted, and ‘everything was clear.’ The deceased had been accustomed to take the train in the evening at this station for more than a year. His son, who usually accompanied his father, testified that ‘the train stops very sharp, and goes off very quick.’ The trains ran every five minutes. There can be no doubt that the deceased was familiar with the surroundings, and was acquainted with the manner of operating the trains.

We are of opinion that the nonsuit was properly directed. It must be assumed that the deceased, when he attempted to enter the car, knew that it was in motion. We cannot know what was passing in his mind, or of what existing facts he was actually cognizant, except by inference. But what others saw and knew in respect to matters...