Adolph Rosenberg, Respondent, v. The Third Avenue Railroad Company, Appellant

Adolph Rosenberg, Respondent, v. The Third Avenue Railroad Company, Appellant. Negligence — a passenger passing his destination and returning to it on the return trip without pay — his relation to the carrier—-injury from the sudden starting of the oar — amendment of the complaint alleging that the car stopped, so as to state that it had nearly stopped. Where a street car passenger, who, through the fault of the conductor, has been carried beyond his destination, is permitted by the conductor to remain upon the car, without paying a second fare, until the car has again reached his des- ' tination upon its return trip, the railroad company is bound to use ordinary care to protect him from injury while he is alighting from the ear upon the return trip, whether, upon such trip, he is to be considered as a passenger or a trespasser. Semble, that his relation as a passenger continues during the return trip. Where, in an action brought by the passenger against the railroad company to • recover damages for injuries sustained by him, while he was attemping to alight from the car on its return trip, the complaint alleges that the car had stopped for the purpose of permitting him to leave it, but was suddenly started while he was endeavoring to alight, and the proof given by the plaintiff and some of his witnesses tends to show that the car did not stop entirely, the court may, in order to conform the pleadings to the proof, permit the plaintiff to amend the complaint by alleging that the car had “nearly stopped” when the plaintiff attempted to alight. Appeal by the defendant, The Third Avenue .Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of April, 1899, upon the verdict of a jury for $3,000, and also from an order" entered in said clerk’s office on the 20th day of April, 1899, denying the defendant’s motion for a new .trial made upon the minutes. Herbert R. Limburger [Henry L. Scheuerman with him on the brief], for the appellant. Charles J. Patterson, for the respondent. [MAJORITY — Hatch, J.:] Hatch, J.: This action was brought to recover damages for injuries claimed to have been sustained by the negligent act of 'the defendant. The plaintiff’s proof tended to establish that he boarded the car of the, defendant at Grand street, corner of the Bowery, to ride t'o Seventy-sixth street; that he. notified, the conductor of his point of destination ; that the conductor did not notify him of his arrival at that point, and he continued upon the car until lie was carried a long distance beyond. Upon discovering this fact he continued upon the car for the purpose of being carried back, on its return trip, to his point of destination. On the return trip he did not pay his fare, but, as he testifies, the conductor said to him that as he had carried him beyond the point where he desired to stop, he (the conductor) would pay his fare. The plaintiff remained upon the car until he reached his point of destination, and, as the car slowed down, he stepped upon the platform to alight. The conductor had given the signal for the car to stop, and as it came nearly to a stop, and before the plaintiff had alighted, he, gave the signal to go .ahead, the car gave a jerk and the'plaintiff was thrown to the street, sustaining the injuries of which complaint is made. The evidence upon these questions was conflicting, but the jury were authorized to find the facts substantially as narrated. It is claimed upon the part of the defendant that the plaintiff ivas riding upon the car with the conductor, who was Ms friend, on the downtown trip; that he had not paid his fare and knew that nobody had paid it for him; and that, in consequence, he was not to be treated as a passenger. If the plaintiff was carried by his point of destination through the fault of the conductor, and he was thereafter permitted to remain upon the car on its doAvntown trip until he reached his point of destination, we think he. must be regarded as occupying the relation of a passenger to the defendant, even though he paid but one fare. The defendant, Avhen it received the plaintiff as a passenger, undertook to deliver him at his pomt of destination upon its line; and if he relied upon the conductor of the defendant to inform hirii when such point was reached, and the conductor negligently omitted so to do, but carried him by, and thereafter he was permitted to remain upon the car until it again reached such point, we do not tMnk it can be asserted that his relation as a passenger had changed.. But, aside from these considerations, and whether the plaintiff was treated as a passenger or a trespasser, it is evident that the defendant owed him the duty not to unnecessarily inflict injury upon him. (Day v. Brooklyn City R. R. Co., 12 Hun, 435; affd. on appeal, 76 N. Y. 593; Sanford, v. Eighth Avenue R. R. Co., 23 id. 343; Rounds v. D., L. & W. R. R. Co., 64 id. 129.) The obligation which rested upon the defendant, if it took affirmative action to eject the plaintiff from the car, or in permitting him to voluntarily alight therefrom, Avas the exercise of ordinary care to avoid inflicting injury upon him; and this was the measure of care which the court charged the jury was the obligation' of the defendant to the plaintiff. So that if Ave assume that the court committed error in stating that the plaintiff was conceded to be a passenger upon the car, or if he was not in fact a passenger, yet the obligation Avhich the defendant was under to him was the same obligation which the court in its charge clearly submitted to the jury; so that in no event was the defendant in anyAvise prejudiced by anything which the charge contained in this regard. The complaint averred that the car was stopped for the purpose of permitting the plaintiff to leave the same, and that while lie was endeavoring to alight'it was suddenly started. The proof given by the plaintiff and some of his witnesses was to the effect that the car did not stop, but was moving very slowly when it was suddenly started up. At the first opportunity,- objection being made that the proof did not correspond to the averment, the plaintiff moved to amend in this respect and was permitted to add, in the place of the word “ stopped,” the words “ the car was nearly stopped.” The defendant objected to the amendment as being beyond the power of the. court to make, and asked leave to withdraw a juror and suspend the trial. The objection was ■ overruled and the leave was refused. It was . not claimed by the defendant that it was surprised on account of the amendment,' and the proof which it gave upon the trial clearly showed that it was as ready to meet the amended issue as the original one. The amendment itself was proper. No new cause of action was added, nor was there a radical change in the act of negligence as originally averred when the circumstances of the case are considered, and the amendment was one clearly authorized to be made upon the trial. (Thompson v. Hicks, 1 App. Div. 275 ; Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646.) This case was not like that of Patterson v. Westchester Electric R. Co. (26 App. Div. 336) or of Anderson v. Third Avenue R. R. Co. (36 id. 309). In the former of these cases the trial was had without any amendment to the complaint, and the plaintiff’s claim and her testimony in support of it was that the car, when the injury was received, was at a standstill and suddenly started. Other proof was to the effect that it did not stop at all. We held that these positions were entirely irreconcilable and that the plaintiff could not support the judgment by the claim that, even though the car was slowly moving, the recovery might be upheld. The -distinction was clearly pointed out in the latter case. Such rule . has no application in respect to the amendment in this case. It was the same act of negligence after the amendment as before; the. amendment simply sought to make the pleadings conform to fireproof. There was no radical departure from1 the proof and the pleadings as was the case in Hoffman, v. Third Avenue R. R. Co. (45 App. Div. 586); in the latter case the variance was radical, both as to the act of negligence and the place of its claimed commision, and this variance was so great as to practically present anew case. The amendment, however, which was made in the present case has not in the slightest changed the character of the act of the defendant, and there was no variance as to place or time between the original and the amended pleading. The defendant was in no sense 'misled, and consequently it has no grievance. The charge, as a whole, was as fair to the defendant as it was entitled. We find no substantial error in the case. The judgment should, therefore, be affirmed. Judgment and order unanimously affirmed, with costs.