Brooklyn Heights R. Co. v. Ploxin

• Decision Date: 05 November 1923
• Docket Number: 32.
• Citation: 294 F. 68
• Parties: BROOKLYN HEIGHTS R. CO. v. PLOXIN.
• Court: U.S. Court of Appeals — Second Circuit

294 F. 68

BROOKLYN HEIGHTS R. CO. v. PLOXIN.

No. 32.

United States Court of Appeals, Second Circuit.

November 5, 1923

George D. Yeomans, of Brooklyn, N.Y. (Thomas L. Hughes, of New York City, of counsel), for plaintiff in error.

Thomas J. O'Neill, of New York City (John A. Goodwin and Leonard F. Fish, both of New York City, of counsel), for defendant in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

This action is brought by an administratrix to recover damages for the loss of life of Louis Ploxin, her husband. On September 1, 1914, he was attempting to cross Fulton street, going from the south to the north side of the street, at a trolley station, when he was struck by a west-bound trolley car and met with injuries which caused his death. Fulton street runs east and west. There are east and west bound trolley tracks upon it. The trolley station, where passengers habitually board and alight from cars, is located between Lawrence and Jay streets, and is about the middle of the block. A sign 'Trolley Station' is maintained at this point. Ploxin was seen to look to the right--the direction from which the car which struck him came. He also looked to the left. The car was going at a high rate of speed, and did not stop at the trolley station. He walked straight across the street. At the time he started to cross, the car was two doors east of Lawrence street. He was seen to look a second time, when a few feet from the track upon which the car which struck him was proceeding. After he was struck, the car proceeded 'five house fronts' before it stopped.

There was testimony that the motorman was inattentive to his duty and was engaged in talking to a passenger on the seat near him. Evidence offered tended to show that no bell was sounded or warning of the approach of the car given. It was also shown that cars stopped at this station, even when there was no signal for such stop. There was a car proceeding in the opposite direction. The evidence of the defendant below was in contradiction of this, and, indeed, in irreconcilable conflict with these claims. In accordance with our decision when the case was here before (Ploxin v. Brooklyn Heights Railroad Co., 261 F. 854) the District Judge submitted the questions of the negligence of the defendant and the contributory negligence of the plaintiff's intestate to the jury as questions of fact. It returned a verdict for the plaintiff. The evidence on this trial is in substantial accord with that adduced on the former trial. Upon such proof, we are satisfied no error was committed below in the disposition of the motions to dismiss and for the direction of a verdict. For a more detailed statement of the facts, see Ploxin v. Brooklyn Heights Railroad Co., supra.

Error is assigned in the court charging as requested by the plaintiff's counsel as follows:

'Now I ask your honor, if the jury finds that this was a regular stopping place, to charge he had a right to rely that they would stop at this trolley station.

'The Court: I have already said that.

'Mr. Hughes: I except to it.'

In the main charge, the court said:

'Was it the custom-- it is proven to be the rule laid down by the company, and that is to be taken into consideration-- but ultimately the question is: What was the custom at this time of the year, and this hour of the night, of the railroad company as to stopping or not stopping at these middle of the streets posts; because, if it was not the custom to stop, the motorman was justified in going ahead without slackening down for stopping; if it was the custom to stop, then anybody crossing the street would have a right to expect the motorman to slow down for stopping.' Thus the jury were in substance told that, if they found the trolley station was a regular stopping place, the deceased had a right to rely upon the fact that they would stop at this trolley station. He had a right to take this fact into his calculations in his attempt to cross the street. It is an element which they might well have considered. Upon the former appeal, we said:

'If the plaintiff in error's testimony be truthful, the motorman could see the deceased crossing. He had ample time and sufficient distance, if he had his car under control, to prevent running down the deceased as he was crossing. This being a trolley station, at which cars passing in either direction habitually stopped, it was not contributory negligence as a matter of law for the deceased to attempt to cross a public street at this point. He had a right to rely upon the fulfillment of the duty resting upon the street railway company to have its car in

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