Matthew Mulligan, Respondent, v. Metropolitan Street Railway Company, Appellant

Matthew Mulligan, Respondent, v. Metropolitan Street Railway Company, Appellant. Negligence — what proof justifies an inference that a motorman saw the plaintiff and slowed up his car to allow him to board it —failure to call the motorman — objection to the opening of counsel. In an action brought against a corporation operating a street railway on Third avenue in the borough of Manhattan, city of New York, to recover damages for personal injuries sustained by the plaintiff, the latter testified that he approached the track of the defendant’s railway intending to board a downtown car; that as the car approached he signaled with his hand for the motorman to stop; that the motorman, who was looking toward him at the time, applied the brake; that when the car had come almost to a stop, the plaintiff put his foot on the running board and grasped the stanchions; that the conductor then rang the bell and that the car started at such a rate of speed that the plaintiff lost his balance, struck an elevated railroad pillar and tumbled off the car. Held, that the evidence was sufficient to warrant an inference that the motorman saw the plaintiff and slowed up his car for the purpose of allowing the plaintiff to board the same, especially as the motorman was not called as a witness by the defendant. In the plaintiff's opening, his counsel stated to the jury that he would show that “attempts have been made and witnesses have been spirited away in this case.” Upon the defendant’s counsel interposing an objection to this remark, the court stated, “ Unless he proves it, I will instruct the jury to disregard the statement.” The plaintiff introduced testimony to the effect that an agent of the defendant had attempted to bribe one of the plaintiff’s witnesses to absent himself from the trial. The matter did not again come up nor was the court’s attention called to it in any manner. No exception was taken by the defendant’s counsel to the ruling of the trial judge at the time the plaintiff’s counsel made the statement in question. Held, that, under the circumstances, the statement embraced in the opening afforded no warrant for the reversal of a judgment in favor of the plaintiff. Appeal by the defendant, the Metropolitan Street Railway 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 5th day of January, 1903, upon the verdict of a jury for $10,500, and also from an order entered in said clerk’s office on the 12th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes. Bayard H. Ames [Arihur Ofner with him on the brief], for tire appellant. Stephen G. Baldwin, for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: This is a negligence suit in which the plaintiff,' a carpenter thirty-six years old, has recovered $10,500 damages for the loss of his left leg. According to his testimony, he approached the track of the defendant’s railroad in Third avenue, near Twelfth street, intending to board a car and'go downtown; as the car approached he put up his hand for the motorman to stop; the motorman was looking toward the plaintiff ; he turned on the brake and stopped the car, or, as the plaintiff puts it subsequently : “ When I tried to get on the car it was going as slow as it could go almost — it was to a stop ; ” the plaintiff put his foot on the running board and grasped a stanchion, when the conductor rang the bell and the car started at such a rate of speed that the plaintiff lost his balance, struck an elevated railroad pillar with his right shoulder, tumbled off the car and became unconscious. The faff resulted in injuries which necessitated the amputation of his leg. The first point of the appellant is that there is no evidence of the defendant’s negligence.- This is based chiefly on the argument that there was no invitation from the motorman to the plaintiff to enter the car -—■ the mere slackening of speed being no proof of such invitation. But there was something more. The plaintiff gave a signal to the motorman indicating his desire to board the car, and he tells us that the motorman was looking toward him at the time. This was enough to warrant an inference that the motorman saw the plaintiff and slowed up his car still further for the purpose of allowing the plaintiff t-o take passage on it; especially when we consider that the motorman, who could have disproved this inference if it were' incorrect, was not called as a witness by the defendant. There is, it seems to me, absolutely no basis in the proof for the suggestion that the plaintiff was guilty of contributory negligence as matter of law. In Iris opening to the jury Mr. Baldwin, counsel for the plaintiff, said he would show that “ attempts have been made and witnesses have been spirited away in this case.” . Mr. Yonge, for the defendant, objected to this as improper and manifestly unfair; whereupon the court said : “ Unless he proves it, I will instruct the jury to disregard the statement.” Testimony was introduced in behalf of the plaintiff to the effect that an agent of the defendant corporation had attempted to bribe one of the plaintiff’s witnesses to absent himself from the trial. The matter did not come up again, nor was the court’s attention called to it in any manner. No exception was taken by defendant’s counsel to the ruling of the trial judge at the time Mr. Baldwin made his statement. In view of these facts and the proof offered in support of that statement, it affords no warrant for a reversal. The judgment and order should be affirmed. Present&emdash;Goodrich, P. J., Bartlett, Woodward, Jenks and Hooker, JJ. Judgment and order unanimously affirmed, with costs.