The New York herald., 1876-01-27

sengers from overcrowdng their cars was the subject
OF suit tried yesterday before Judge Van Brunt hold
ing Trial Term Of the Court OF Common Pleas The suit
is brought by Ernest sweitzer, although the party
really suing TO is Max Sweitzer brother who
is still minor 1t is action brought against the
Third Avenue Railroad Company, $4,000 being the
amount Of damages claimed
According to the allegations in the complaint Max
Sweitzer the 4th of December 1872 at about half
past ten O'Clock in the evening, got into
Third avenue car at the corner Of Broorne
street aud the Bowcry, for the purpose
OF riding up to Thirty second street Thore were only
few passengers in tho when he entered and so he
got seat without difficulty As tho car advanced
however, its uptown journey the throng Of passen
gors increased and the speedily became crowded
Young Sweitzer gave up his seat to lady and took
standing position with others equally unfor
tunate. The rush Of passengers continued, whom
gradually he pushed forward to the 'front.' plat
form, which, we'll tho inside OF the car, was
packed with passengers. Arriving near his destna-
tion no asked the driver to stop at Thirty-second
street. to which request, however, this functonary
paid no attention. Tho FINAL result was that he
pushed OF the car, when the wheels on
one side passed over his right ankle. AcutcIy
smartng from the pain caused by his in
juries he picked up and conveyed into
liquor store and shortly afterward taken 10 his resi-
dence in Sullivan street In few days he was removed
TO German hospital and his right leg amputaed the
ankle Subsequently another amputaton of the limb
was found TO be necessary, this second amputation
beng at the knee He appeared in court yesterday sup
ported by crutches, when ho was represented by Mr.
Charles Wholo az counsel, Mr. A. j. Nanderpoo appear
ing as counsel for the railroad company.
The testimony taken on the trial was comparatively
his behalf recited the particulars OF the accident
as given above. He added that al tho
time o. Of the accident be was receiving SIS
quonco of his injuries and long detention at tho
hospital he was unable to do any work for months
His brother Ernest, the plaintiff and guardian od e
corroborated the latter portion OF tho narrative with
the additional testimony that at the time of the acct
dent his brother Max sufficiently familiar with
the English language to ntellgonty half dozen
words. This last allegation was intended TO refute
Of the statements set up in the defence, that young
Swezcr told various parties after the accident that il
happened through his jumping OF the DIR. Muck
ins, attached to the hospital where young Swezer
treated explained the nature of his injuries and the
unavoidable necessity of the two amputations
The testimony for the defence was manly on the
points alluded to- the alleged statement by Swcitzcr
that he had only himself to blame for his injuries
through his reckless effort to jump of the when
he found the driver would not stop for him. Ex-Mayor
Gunther was called on this point but his testimony
was rather of a negative character. He had tho m-
preston that Sweitzcr made such statement TO him,
but he could to IL positively In the course
OF his testimony the fact however elected that he
attempted behalf OF Sweltzer to effect q settle
ment with the railroad company but that the latter re.
fused to enter into any such negotiation.
The case was summed up by Mr. Whele, who sought
to impress the jury with the fact that railroad
PdoS, III theH bieeu Aoi gam, VIII oNoICrOWu tuelT
cars with passengers, they should pay the penalty of
such dangerous and reprehensble conduct in of
any injury to a passenger from this cause which he
claimed was clearly proven in this case. Mr.. Wander
poel, the contrary, stood up stouty for the
pany, and insisted that young Sweitzer had but
himself to blame for the injuries he received brief
but clear and succnct charge made by Judge Van
Brunt He stated that the rules OF law governing cases
of this kind had been discussed by the all its
phases, and that at the present time they verv
distinctly and decidedly settled The principles gov
ernng the case were very simple and could
be applied without any great difficulty aftor
the jury had once ascertained the facts
He had been requested by tho counsel for
the plaintiff to charge the amount of diligence
city railroad companies should exercise regarding
safety Of their passengers and he held that the railroad
compancs.were bound TO use all reasonable diligence
them for transportation Whom they faod to exercise
all reasonable diligence for that purpose they be-
responsible for any accident that might happen
to passenger, provided the passenger himself
guilty of negligence which in the slightest degree
trbuted to the injury If they found from the evidence
that the plaintiff pushed from the interior OF the
to the front platform and then crowded off the car
by the crowding OF tho passengers, and that he
used all reasonable means to protect himself and
prevent tho accident, the plaintiff entitled to
verdict If however, they found, claimed by the
defendants that he went to the platform volun-
tary, aud, further claimod that without speak
ing 10 tho driver he jumped from the whilo II
In motion, and by that means the accident occurred,
the plaintiff, OF course, could not recover as IL
The Jury wos~ nours, at the end OF
which time not beng able to agree tcy ordered
TO bring in q sealed verdict this morning.