On appeal from the Supreme Court.
For the appellant, W. Holt Apgar.
For the respondent, Franklin H. Berry.
The opinion of the court was delivered by
PARKER, J. The plaintiff was a passenger on a late train of the defendant company from New York to Asbury Park, leaving New York at twelve-ten midnight. He and his brother and a friend were in the last car. About two A.M., when the train stopped at Asbury Park, the party got out, on the east or left side, according to Charles Potter, and apparently had walked up to near the head of the train when the plaintiff recollected that he had left a pair of rubbers on the train; so he jumped on the nearest car platform next to the baggage car, and was engaged in making his way back toward the rear car where the rubbers were, when the train, having started, jolted or rocked, as he was passing from one car to another and threw him off to the west of the train. The train was vestibuled, and the evidence indicated that the vestibule doors were all open on that side. Plaintiff sustained a severe scalp wound and concussion of the brain.
The negligence charged in the complaint is failure to use proper care to have the cars, passageways, doors, platforms and connecting plates, with the appurtenances, in proper and safe condition for the use of passengers. At a former trial there was a verdict for plaintiff, which on rule to show cause, was set aside. Then the case went back for this second trial, at which the plaintiff had a verdict of $3,000, and the trial judge refused a rule to show cause, whereupon the defendant applied to the Supreme Court for a rule, and it was again refused by that court, as we are informed by the brief for appellant.
There are sixteen grounds of appeal, of which the first may be disregarded as merely charging general error.
The second is that the "judgment of the Supreme Court is contrary to the credible evidence given in the cause." Under
this, counsel undertakes to review the whole evidence as though on a rule to show cause. Under the settled practice we are not concerned on this appeal with either the weight or the credibility of the evidence.
The third ground is abandoned.
The fourth ground is divided into four subdivisions, a, b, c and d. Subdivision a is that there was no evidence showing negligence. If a duty of care existed, we think there was such evidence. Subdivision d is that the court should have directed a verdict because the clear weight of credible evidence was with the defendant -- which is substantially the same as the second ground just considered. It is urged that the appellate court should not hesitate to set aside a verdict on appeal as tantamount to an error in law. In like manner it is sometimes urged that the jury system be abolished. But the leadership in this is not for the courts. The argument is conspicuously weak in the present case, where there have been two successive verdicts for the plaintiff, and neither the trial judge nor the Supreme Court deemed it proper to interfere with the second, on which the judgment now under review is founded.
Subdivision b invoked section 55 of the Railroad act (Comp. Stat., p. 4245) relating to jumping off a car in motion. But whether plaintiff did this was a disputed question of fact. Subdivision c is that plaintiff violated section 39 of the act (Comp. Stat., p. 4240) by going on the platform notwithstanding the printed regulation posted up inside the cars, and reading "passengers must keep off the platform until the train stops." With this may be considered the refusal to charge the fifth, thirteenth, fourteenth, and perhaps other requests of defendant, that in effect the company was not liable if plaintiff disregarded the notice. This seems to be the crux of the case: for if defendant owed a duty of care it became a jury question whether under the circumstances of the case there was negligence in leaving ...