Third Ave. R. Co. v. Barton

• Decision Date: 04 January 1901
• Docket Number: 35.
• Citation: 107 F. 215
• Parties: THIRD AVE. R. CO. v. BARTON.
• Court: U.S. Court of Appeals — Second Circuit

107 F. 215

THIRD AVE. R. CO. v. BARTON.

No. 35.

United States Court of Appeals, Second Circuit.

January 4, 1901

H. R Limburger, for plaintiff in error.

George R. Baker, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges.

LACOMBE Circuit Judge.

The action was brought to recover damages for personal injuries sustained by the plaintiff, and claimed to have been occasioned by the negligence of the defendant. Plaintiff while a passenger on one of defendant's cars, which run beneath the elevated railroad structure on Third avenue, was brought into violent contact with one of the pillars of such structure, which was located with its base 3 feet 2 1/2 inches from the nearest rail of defendant's track. On the open cars of defendant there are uprights marking the different compartments or seats, to which are attached metal stanchions for handholds. The distance between these stanchions and the pillar is a trifle less than two feet. Access to the different seats is afforded by a side step or running board extending along the side of the car from front to rear. In view of the verdict of the jury, the plaintiff's version of the occurrence must be accepted. He boarded the car somewhere near Fifteenth street, getting on the step somewhat back of the middle of the car, with a stanchion in each hand. The car started, and the conductor motioned him to come forward, calling out: 'Seat in front, sir. Come forward here, and get the seat. ' The plaintiff moved forward along the step to get the seat. At the same time the conductor was moving towards the rear along the same step. When they reached each other, the conductor 'obstructed his way,' and plaintiff was 'passing the conductor at the time that he struck the post. ' The conductor 'stood there' on the step, and by standing 'forced plaintiff around him,' but did 'not catch hold of plaintiff with his hand, or anything of that sort ' Plaintiff 'started to go around the conductor,' and while in that situation his head came in contact with the pillar. The conductor did not go inside the car when plaintiff was about to pass. He passed plaintiff on the inside. Plaintiff had ridden on the road before, and knew of the elevated pillars that are located there in a general way.

Defendant assigns error that the jury was not sufficiently instructed by the charge as to the law of contributory negligence. After a brief statement as to the degree of care required from common carriers of passengers, the court charged as follows:

'There is no question that the plaintiff suffered on the morning of October 2, 1897, a very serious injury. Neither is there any question but that he received the injury by coming in contact with a pillar of the elevated railroad. There is no adequate question that if he received the injury by walking along the step, going behind the conductor in response to his demand or

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