Rudolph Christensen, Appellant, v. Brooklyn Heights Railroad Company, Respondent

Rudolph Christensen, Appellant, v. Brooklyn Heights Railroad Company, Respondent. Second Department, November 24, 1909. Railroad — negligence — injury to passenger while boarding trolley car. Where a passenger, while attempting to hoard a trolley car at the loop at the New York end of the Brooklyn bridge, was caught between the car he was attempting to board and another on the other track and injured, and it appears that if the first car had stopped a few feet hack from the curve the space between the cars would- have been ample, the negligence of the defendant is shown, for the plaintiff had a right to assume it was safe to stand where the car stopped to receive passengers. The motorman of the second car should have observed the position of plaintiff and the car ahead of him, and plaintiff was not guilty of contributory negligence in letting an infirm person hoard the car ahead of him. Appeal by the plaintiff, Rudolph Christensen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of May, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term. Walter Lester Glenney [Frank Harvey Field with him on the brief], for the appellant. D. A. Marsh [George D. Yeomans with him on the brief], for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The action is for personal injuries caused by the defendant’s negligence. The plaintiff went to the Hew York end of the Brooklyn bridge, intending to take a Flatbush avenue car for Brooklyn. As he stood between the first and second loops waiting for a car, he observed a Fulton street car coming in on the first track, and while it was still standing to discharge or receive passengers, a Flatbush avenue car came in on the second track and stopped on the curve where tli ecars go out on the straight track for the return trip. Passengers were discharged from both front and rear platform. The plaintiff observed that only a few passengers were getting off from the front platform, and went to that end of the car to board it. He says that he stepped aside either to allow a lady to get off or an old gentleman to get on ahead of him, and that he was in the act of stepping onto the platform when the Fulton Street car started up, and he was caught between the two cars, rolled around and quite severely squeezed. The defendant’s tracks converge at the curve. While the distances are not accurately given, the plaintiff estimated the distance from the front of the Flatbush car where he stood to track one as from six to eight feet, and the distance from the center of the car to track one as from fifteen to twenty feet. Whatever be the distance, the fact is established that the two cars came so closely together as to squeeze the plaintiff between them. The plaintiff had a right to assume that it was safe for him to stand where the defendant’s car stopped to receive passengers, and he certainly should not be charged with contributory negligence for letting a more infirm person board the car ahead of him. It seems to me that the negligence of the defendant is obvious. If the Flatbush Avenue car had been stopped a few feet back from the curve the space between the two cars would have been ample. Certainly a jury would be justified in saying that it was negligence to stop a car to receive or let off passengers where the converging tracks would bring two cars on adjacent tracks so close together as to squeeze a person standing between them. A jury would also be ■ justified in finding from the evidence that the motormán of the Fulton Street car should have observed the position of the plaintiff and of the Flatbush Avenue car ahead of him. The judgment should be reversed. Woodward, Jfemes, Burr and Rich, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event.