Paulitsch v. New York Cent. & H.R.R. Co.

• Decision Date: 20 April 1886
• Citation: 102 N.Y. 280,6 N.E. 577
• Court: New York Court of Appeals Court of Appeals
• Parties: PAULITSCH v. NEW YORK CENT. & H. R. R. CO.

102 N.Y. 280

6 N.E. 577

PAULITSCH

v.NEW YORK CENT. & H. R. R. CO.¹

Court of Appeals of New York.

April 20, 1886.

Appeal from judgment of general term of the New York superior court, affirming judgment in favor of plaintiff for $13,191.97, entered upon verdict of jury.

RUGER, C. J., ANDREWS and DANFORTH, JJ., dissent.

Frank Loomis, for appellant, New York Cent. & H. R. R. Co.

Christopher Fire, for respondent, Mathilde Paulitsch.

FINCH, J.

The magnitude of the verdict rendered against the defendant; the remarkable body of evidence unsuccessfully given in its favor; and the extraordinary incident which marked the close of the trial,²-tend to make any errors in the charge of the court to the jury of more than common importance, and to justify an inference that they worked harm to the defeated party.

Certain facts in the case are entirely undisputed, and upon them the question arises most important to consider. The train arrived at the One Hundred and Tenth street station either precisely upon its schedule time, or a little behind that time. No one among all the witnesses pretends, and no circumstance proved indicates, that it reached the station in advance of its appointed time. Upon its arrival it stopped, and remained stationary until all the passengers desiring to leave the train had left it and disappeared from the conductor's sight, and all those upon the platform who desired to take the train had gone into the cars; and then, when the conductor, who stood watching the exit and ingress of his passengers, observed that all had been accommodated, and that the station platform was cleared and empty, and that no conceivable duty of delay remained, he gave the signal for starting, and turned to enter or entered the car. The engineer drew in his head, and pulled his lever; and the train started. At that precise moment, according to her own account of the accident, the plaintiff had reached one of the cars, and taken hold of its rail, and put one foot on its step, and then, and not before, the train moved, and she was thrown down and seriously injured. She was a belated passenger, as clearly appears from her statement taken by itself. When she bought her ticket at the office before ascending the stairs, she asked if the signal bell, rung by electricity from One Hundred and Twenty-fourth street, had sounded, and was told that it had, and that she had better hurry up. This was a plain intimation that she was late, and we may readily suppose that she moved upon the stairs that she moved up the stairs Just as she reached the top step of the flight she says that she met two gentlemen, and asked them, ‘Did You miss the train?’ The inquiry shows her conciousness that the cars had started, or that she knew or feared that she was late. If this question was asked, as she says it was, just as she was going up the final step to the platform, she must have been at that moment in plain sight of the cars. If they were then, as consistently with her story they must have been, motionless and waiting, her question is inconceivable. If at that moment they were in motion, her inquiry would have been natural. As she stepped upon the station platform, and but a few feet from the train, she admits that no conductor or brakeman was in sight. She was no stranger to the scene. She had taken the train at that point very many times, and always before had seen present the conductor and brakeman. The warning of the ticket agent, her inquiry of the two passengers, and her observation of the vacant platform, all demonstrate that she was late and in haste, and show a consciousness on her part that, if the train was not actually moving, it was at least about to move. But since the verdict of the jury involves a finding that the cars were not in motion, and that she had no reason to believe that they were about to start, we are permitted only the inference, which at least harmonizes much of the testimony, and is inevitable if the plaintiff's story be true, that she came upon the platform after the signal to start had been given, and just as the engineer was about to apply the steam, and at a moment when she could not see the conductor, and he was unaware of her presence.

On this state of facts the defendant, as was its right, presented several propositions to be charged, which were granted until the last was reached. That was stated thus:

‘When the people who desired to stop at One Hundred and Tenth street station had left the train, and the persons who were then...