James Maher, by Guardian, etc., Respondent, v. The Central Park, North and East River Railroad Company, Appellant

James Maher, by Guardian, etc., Respondent, v. The Central Park, North and East River Railroad Company, Appellant. In an action to recover damages for injuries alleged to have been occasioned by the negligence of the driver of one of defendant’s street cars, plaintiff’s evidence tended to show that he, an infant ten years old, with two companions, desiring to take passage, hailed the car, the driver stopped and the boys started to go to the back platform; the driver told plaintiff to jump on in front; he did so, and was on the first step, attempting to step on to the second, when the driver struck the horses, the car gave a jog, knocking plaintiff off, and he was injured. Held, that the evidence justified a verdict for plaintiff; that the fact that he jumped on to the front platform did not, under the circumstances, establish contributory negligence, as matter of law, but it was a question for the jury. This court cannot interfere with a judgment because excessive damages have been allowed. (Submitted June 20, 1876; decided September 19, 1876.) Appeal from judgment of the General Term of the Superior Court of the city of JSTew York affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, Y J. & S., 155.) This action was brought to recover damages for injuries alleged to have been sustained through the negligence of defendant’s employe. Plaintiff’s evidence tended to show that he, with two other lads, his companions, signaled to one of defendant’s cars and called to the driver to stop; he did so, and the boys started to get on to the rear platform. The driver told plaintiff to get on in front; he got on to the first step, and was stepping up to the second, when the driver struck the horses, they jumped, giving the car a jog which knocked plaintiff off; he fell and the car wheel ran over his legs. Plaintiff was at the time an infant, about ten years of age Defendant’s counsel moved to dismiss the complaint on the grounds that plaintiff’s negligence contributed to the injury, and that no negligence was shown on the part of defendant. The motion was denied, and defendant’s counsel duly excepted. Said counsel requested the court to charge, among other things, as follows : “ Third. It was negligence on the part of the plaintiff, under the evidence in this case, to get on the front platform of this car. “ Fourth. The negligence of the plaintiff, in attempting to get on the front platform, contributed to the accident. “ Fifth. The front platform is a place of danger, and the occupation of the front platform, or an attempt to get on the front platform, is prima facie evidence of negligence on the part of the passengers. “ Eighth. That there is no evidence in this case that the driver told the boys to jump on to the front platform.” “ The court: I will leave that entirely to the jury to say whether such language was used or not.” Defendant’s counsel duly excepted to the court’s leaving this last matter to the jury to decide as a fact from the evidence. Further facts appear in the opinion. Brown, 'Rail <& Yamderpoel for the appellant. John Graham for the respondent. The question whether. plaintiff was guilty of contributory negligence was properly submitted to the jury. (O'Mara v. H. R. R. R. Co., 38 N. Y., 445 ; Filer v. N. Y. C. R. R. Co., 49 id., 47; Mowrey v. Cent. City R. Co., 51 id., 666; Thurber v. H. B. M. and F. R. R. Co., 60 id., 326; McIntyre v. N. Y. C. R. R. Co., 37 id., 287; Clarke v. Eighth Ave. R. R. Co., 36 id., 135 ; Willis v. L. I. R. R. Co., 34 id., 670 ; Morrison v. Erie R. Co., 56 id., 302; Roberts v. Johnson, 58 id., 613.) [MAJORITY — Miller, J.] Miller, J. At the close of the plaintiff’s case and again at the close of the trial, the defendant’s counsel moved to dismiss the complaint substantially upon the grounds: First. That the plaintiff had not shown himself free from negligence, hut on the contrary, negligence of the plaintiff contributed to the accident. Second. That there had been no negligence shown on the part of the defendant. The plaintiff was an infant of the age of ten years and upwards, and the injury was occasioned as is claimed by the negligence of the driver on defendant’s horse railway car in the city of blew York, in starting the car after he stopped for the plaintiff and his. associates, two other boys, to get on before they had a full opportunity to do so. According to the version of the plaintiff and his witnesses, which must be regarded as correct upon appeal, the driver stopped the car and told the boys to. jump on. They started to go to the back platform for that purpose and the driver then told plaintiff to jump on in front. He did so, and was on the first step and attempting to get on the second, when the driver struck the horses, the car gave a jog, knocked plaintiff off and his leg was injured so that it became necessary to amputate one of his feet. One of plaintiff’s associates was also thrown off at the same time by the jar, and the other boy did not get on the car. The plaintiff, it is claimed, was negligent in attempting to get on the front platform of the car instead of the rear platform, as well as in attempting to get on the car while it was in motion. The question of contributory negligence according to the adjudications in this State, is generally a matter for the consideration of the jury, and unless such negligence is plainly and clearly made out, should not be withheld from them. It is not enough to authorize a nonsuit that the evidence would warrant the jury in finding that the plaintiff was negligent, and that his negligence contributed to produce the injury, but when it is in doubt from the evidence whether negligence is established, that question as we have seen must be determined by the judgment of the jury. (Thurber v. Harlem, B. M. and F. R. R. R. Co., 60 N. Y., 326.) The fact that the plaintiff jumped on the front platform of itself, and under the proof was not sufficient to establish negligence as a matter of law. He was bound to exercise proper care and caution and the prudence required of an infant of tender years, is to be measured by his maturity and capacity, and need be only of that degree which might be reasonably expected in view thereof. (See case cited, supra) Under the circumstances it is not clear that the plaintiff was chargeable with strict legal negligence. As is manifest, there was proof to show that he was invited by the driver to get on in front, and only followed his directions by so doing. The authorities are numerous, that persons who are traveling on a railroad car, are justified in following the directions or request of the employe in charge while he is engaged in the direct line of his duty, in assisting passengers in getting off and on a car, or in directing them while so doing. They may very properly assume that such employes are familiar with the operations of the cars, and have knowledge of what is required for safety and protection while giving such directions. (Filer v. N. Y. C. R. R. Co., 49 N. Y., 47; S. C., 59 id., 351; Clark v. Eighth Av. R. R. Co., 36 id., 135 ; McIntyre v. N. Y. C. R. R. Co., 37 id., 287.) Having in view the rule referred to, the plaintiff was authorized to get on the car by the front platform, and unless he was negligent in so doing the act was no bar to a recovery. Whether he acted with such circumspection, prudence and care, as was demanded in following the directions given under the facts and circumstances proved, was a question of fact, and under the proof negligence, as a matter of law, could not fairly be imputed to him. Nor can it be claimed as an established, uncontradicted fact in the case, that the plaintiff made an effort to get on the car while it was in motion. The testimony on this subject was conflicting, all three of the boys testifying that the car was stopped, and it cannot be assumed, therefore, that the car did not stop. The question arising as to the negligence of the defendant, was also properly left to the jury. Upon this subject there was evidence upon both sides, and it is not the province of this court when such is the case, to assume to determine where the weight of the testimony lies. The General Term have the power to review the facts for such a purpose, but if the verdict can be upheld in any view of the facts, this court cannot interfere. (Hazman v. The Hoboken Land and Improvement Co., 50 N. Y., 53 ; Hamilton v. Third Av. R. R. Co., 53 id., 25.) It follows, that the motion to dismiss the complaint was properly denied. The request to charge that it was negligence for the plaintiff under the evidence to attempt to get on the platform, was properly disposed of by adding to the request the qualification if the jury believed he did so without the car stopping or being stopped. The fourth and fifth requests to charge, were also properly modified and as thus corrected properly charged. The eighth request, that there was no evidence in the.case that the driver told the boys to jump on the front platform, was also properly refused as there was testimony as we have seen to that effect and the court properly submitted it for the jury to determine whether such language was used. Even if it was clear that the damages were - excessive, it is not the province of this court to interfere on any such ground. The judgment was right and must be affirmed, with costs. All concur; Andrews, J., absent. Judgment affirmed.