Rossario Randazzo, Respondent, v. The Brooklyn Heights Railroad Company, Appellant

Rossario Randazzo, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. Second Department, October 18, 1907. Railroad — injury to ■ passenger while alighting — proximate • cause — evidence — fact that defendant had no report of accident. Evidence in an action against a railroad to recover for personal injuries examined ■ and'AeM to. be sufficient tó justify- the submission of the-question as to whether the plaintiff’s injuries were caused solely by. a slippery substance upon the platform on which he alighted, or by .the sudden starting of the c ar. When the plaintiff has testified that, the car was suddenly started while he was in the act of alighting, and that he was pushed from the car by the gatetender, the jury is entitled, to say whether the starting of the car was the proximate cause of the .accident, although the plaintiff has testified that he would not have fallen b.ut for-a slippery substance on the platform. When it has not been ,shown that it was customary for a'defendant railroad to reqüire the filing of reports of accidents,, it is not error to exclude evidence ■ showing that the .defendant had no report of the accident in question; especially , so when the defendant has been allowed to prove that there was no paper connected with the accident filed except a synopsis of the complaint. Appeal by tlie defendant, the Brooklyn Heights Railroad Company, from a judgment of the County Court ■ of . Kings county- in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the loth day of January, 1907, upon the verdict of a jury for $250, and also from an order entered in. said clerk’s office on the 15th day of January, 1907, denying the- defendant’s motion for a new trial- made upon the minutes.' I. R. Oeland [ George D. Yeomans with him on the brief], for the appellant. Donald F. Ayres, for the respondent. [MAJORITY — Rich, J.:] Rich, J.: This action is brought to recover damages for a personal injury. The complaint alleges that the plaintiff was a passenger on one of defendant’s cars, and that upon attempting to alight, therefrom at á station, -upon the - platform -of which there was a slippery substance, he-stepped thereon, and before he had fully alighted the car started suddenly, throwing him down and causing the injury complained of. The trial court charged the jury that if they found that the slippery substance upon the platform was the sole prodlosing-cause of the injury the plaintiff could .hot recover, but if they found that the car starteij before-the plaintiff could get,his-feet off the platform of the car, and he was thereby-thrown down and. injured, they might find a verdict for- the plaintiff if 'tliéy also found that he was free from contributory negligence... The appellant - contends that there was no evidence in the case warranting the submission of. this question to the. jury or froiii which they could find that the starting of-the car, while plaintiff was alighting therefrom, caused the accident, and that the "trial court erred in not granting its motion to dismiss the complaint. This contention is upon the assumption that- the plaintiff’s evidence as to how the accident occurred admits of. no other conclusion than' that his fall was. caused solely by: tile slippery substance upon .the platform.. I do not" so read it. 'The plaintiff speaks The English language imperfectly. While it is true that his'narration of what occurred at "the time h.e fell is. not as-clear as to the producing cause of his fall as one more conversant with our language would have made it, I think it. was sufficient to justify ’the-court in-denying the-motion made for a nonsuit, when the plaintiff rested his case. He says : “ Wheii the- train got dowp to Ninth street the conductor hollers Ninth street and I was 'sitting down. * * *■ As soon as the train stopped .he (the conductor) opened-the gates,, and when I was stepping, down he said ‘step lively,’ and when 1 got -.down and I had my one foot on the station and .one on the car.- the conductor closed the gate or whatever.you call.it,. and pushed me,, and the train" was going and I make me a slip and I fall down and my foot got down between the statiori)and the" car.” On cross-examination he said: “I was getting off this car and it .was standing-still. While getting off the car- the conductor closed the gate, *■ * * He pushed me and I fell down.” ■ While plaintiff testified that; lié would not. have fallen if the slippery substance had'not béen on. the platform, this evidence- did not preclude the jury, from "finding.that the starting of the-car was the proximate cause of the accidént, and.I think'.-their verdict is" sufficiently sustained by 'the evidence, / .The appellant urges that the trial court erred in excluding evidence that there was no report of-this accident on the files of the company. There is no evidence' in the case-that'the defendant required,, or'that it was customary for, reports of accidents to be made by its employees, in the absence of which the evidence offered could'have no weight; in addition tó which the defendant proved by its witness Bradley, who was a clerk in its claim department, that there was no paper connected, with the accident on file, except a synopsis of the complaint, which he made' after its service. The defendant was not prejudiced by the ruling complained of, and the judgment and order of the County Court of Kings county must-be affirmed, with costs. Present — Jenks, Hooker, Gaynor, Rich and Miller, JJ. Judgment and order of the County Court of Kings county unanimously affirmed, with costs.