Viemeister v. Brooklyn Heights R. Co.

• Decision Date: 16 June 1905
• Citation: 182 N.Y. 307,74 N.E. 831
• Parties: VIEMEISTER v. BROOKLYN HEIGHTS R. CO.
• Court: New York Court of Appeals Court of Appeals

182 N.Y. 307

74 N.E. 831

VIEMEISTER

v.BROOKLYN HEIGHTS R. CO.

Court of Appeals of New York.

June 16, 1905.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Edmund C. Viemeister against the Brooklyn Heights Railroad Company. From an order of the Appellate Division (87 N. Y. Supp. 162,91 App. Div. 510), reversing a judgment for defendant entered on a verdict, and an order denying a new trial, defendant appeals. Reversed.

The complaint herein alleges ‘that theretofore, and on or about the 26th day of September, 1900, plaintiff was a passenger on one of the defendant's cars on its said elevated line on Myrtle avenue, which car was crowded with passengers, by reason of which fact plaintiff was obliged to and did stand therein; that at or near the Vanderbilt Avenue Station of said line the defendant, neglecting and failing in its duty as a common carrier in the premises, negligently and carelessly allowed and forced other passengers to crowd into said car, whereby the said car became overcrowded, and said train and car were then started up with a jerking motion, which caused the said passengers to sway and crowd against each other, and particularly against the plaintiff, forcing him against one of the seats in said car, and inflicting upon him severe and painful injuries.’ The answer is a general denial, but upon the trial it was not disputed that the plaintiff's knee was injured while he was a passenger upon one of the defendant's cars. On the 21st day of September, 1900, the plaintiff lived at Winfield, borough of Queens, city of New York. Toward evening of that day he boarded one of the defendant's Myrtle avenue elevated trains. He got off at the Vanderbilt Avenue Station on this line in order to transfer to another train for Ridgewood. His testimony and that of his witnesses tended to show that it was the ‘rush hour’; that the Vanderbilt Avenue Station was crowded; that plaintiff waited while one train went by, and when another came along the platform man or guard opened the middle door of one of the cars; that plaintiff was standing close to the edge of the platform nearest the train; that a rush by a number of persons to get on at this door forced him into the car; that the car was crowded, but there was room for a few more; that plaintiff took a position standing near the end of one of the seats; that the guard on the outside kept pushing people into the car through that door after plaintiff was standing in that position, forcing his knee against the arm of the seat near which he was standing; that he felt the pain, and called to the guard to desist, but the latter crowded on more passengers; that plaintiff felt the pain before the train started; that the train started with a jerk, and this increased the pressure of the passengers against his knee. At the close of the plaintiff's case counsel for the defendant moved to dismiss the complaint upon the ground that no negligence on the part of the defendant had been established, as the evidence did not show that there was any extraordinary movement of the car, or more than was pecessary for its operation. The court said: ‘I do not understand that they claim it was the jerk of the car that did it. They claim that it was the overcrowding.’ Plaintiff's counsel then said, ‘Overcrowding and forcing the passengers in.’ The motion was denied, but there was further colloquy between counsel and court, at the close of which plaintiff's counsel said: ‘We claim, also, not only the overcrowding, but continuing to force passengers into an overcrowded car by the guard, and then the unusual jerk due to the extra load by the unusual crowd.’ The evidence introduced by the defendant tended to show that neither the car in question nor the Vanderbilt Avenue Station was crowded at this time, and that the train was not started with more than the ordinary jerk necessary to start the car.

In charging the jury the learned trial court explained the theory of the plaintiff's case as disclosed by the trial, saying in part: ‘That is his theory-that so many people were in there [the car] that it was not only inconvenient, but unsafe; that they protested against anybody else being allowed to come on, but that in spite of that the guard outside, who had power to keep people off, instead of keeping them off, pressed them in, and pressing them in they pressed his leg against the seat and injured his knee;’ and stating that, if the jury found this to be the cause of the accident, they could find for the plaintiff. The court further charged that, if the injury to the plaintiff was caused by the jerk of the car in starting, the jury should find for the defendant, as there was no evidence tending to show that the train was started with anything more than the jerk necessary to move it. The court also charged that if the plaintiff was injured ‘by a rush of people who wanted to get on board at the same time on this crowded car, without the intervention or assistance of the guard, the defendant was not responsible, because that is another risk that a man takes in a crowded city in trying to get home the same time as everybody else wants to get home.’ The material part of the charge concludes as follows: ‘Now, that is the simple issue in this case: Was the plaintiff hurt by reason of the fact that against the protest, and when it became apparent that it was unsafe to have more people in there, the guard persisted in pushing more people in? If those are the circumstances under which the accident happened, then you would have the right to hold the railroad company responsible; otherwise not.’ At the conclusion of the charge the plaintiff's counsel took an exception to that portion ‘that states that if he was forced on by other passengers in the desire to get to his home the company will not be liable,’ and with this exception was coupled the request, ‘in view of that portion of the charge, that...