
    George Hastings, Appellant, v. The Central Crosstown Railroad Company, Respondent.
    
      Negligence — not presumed because a street car runs off the track—liability for the act of a reckless-driver — not negligence per se to ride upon a front platform — contributory negligence a question for the jury.
    
    In an action brought to recover the damages resulting from personal injuries caused by the alleged negligence of the defendant, it appeared that the plain- . tiff, who was smoking, entered upon the rear platform of a car of the defendant, which was not full inside, and was told by the conductor that if he. wished to smoke he must go upon the front platform, which he did; that upon reaching a curve, where there was a network' of tracks, and where the pavement was in a very bad condition, the horse drawing the car was compelled to stop; whereupon the driver gave the horse a blow with his whip; the horse plunged and the car went off the track, and the plaintiff was thrown down and injured. The plaintiff testified that he noticed the dangerous condition of the street, and had grasped the hand rail, but had released it upon being called on by the con- ' ductor to pay his fare.
    The court dismissed the complaint upon the ground that the defendant was not negligent and that the plaintiff was.
    
      Held, that the decision was erroneous upon both branches of the case;
    
      That while negligence could not he imputed to a street railroad company from the mere fact that the car left the track, there was evidence in this case of the bad condition of the street, which called for more than ordinary care upon the part of the driver of the car;
    That the fact that the difficulty of making progress was so great as to stop the horse, and that the driver struck the horse suddenly with his whip, and that the horse plunged forward and threw the car of£ the track, was some evidence of negligence upon the part of the servant of the defendant;
    That it was not negligent, as matter of law', for a passenger to ride upon the front platform of a street railway car, and that the question of contributory negligence was one of fact for the jury, under all the circumstances of the case;
    That the jury should have been allowed to consider, among other things, the evidence of the plaintiff, where he stated that lie had grasped the hand rail, and that he only let go of it in order to pay his fare to the conductor.
    Ingraham, J., dissented.
    Appeal by the plaintiff, George Hastings, from a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 4th day of December, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury, and also from an order entered in said clerk’s office on tlie 27tli day of November, 1895, denying the plaintiff?s motion for a new trial made upon the minutes.
    
      Arthur Furber, for the appellant.
    
      Robert Sewell, for the respondent.
   Patterson, J.:

This action was brought to recover damages for personal injuries sustained by the plaintiff while a passenger upon a car belonging to the defendant, a street railway company, which injuries, it is alleged in the complaint, were caused by the negligence of the defendant’s servant, the driver of the car. The plaintiff at the time the accident occurred was riding on the front platform of the car, which circumstance induced the trial judge to dismiss the complaint, on the ground that the evidence showed that the plaintiff failed to place himself in as safe a position in the car as he was able to obtain. That was attributed to the plaintiff as negligence on Ins part sufficient to defeat his right to a recovery. From the judgment entered upon the dismissal of the complaint, and from an order denying a motion for a new trial, the plaintiff appeals.

It appears that the plaintiff entered the car on the rear platform and was smoking, and according to his story, he was told by the con-. ductor that if he wished to smoke he must go to the front platform. There were not many passengers in the car, and he could have found a seat in it. Acting upon the assumed invitation of the conductor he went to the front platform. The car was going along West street, and when it reached the curve at West Eleventh street, the condition of the pavement between the tracks was such that the horse drawing the car was compelled to stop. There appears to have been quite a network of tracks at or near this point. According to the plaintiff’s version, the driver gave the horse a blow with a whip, .the horse made a plunge and the car went off the track. The next thing the plaintiff knew was that he was picked up by two laborers and carried across the tracks to a woodshed in the neighborhood.- He was seriously injured by falling -or being thrown from the car. The plaintiff’s account of the occurrence with respect to the act of the driver and the cause of his falling off the car, is contradicted by the defendant’s witnesses. The plaintiff further testified that the street and the tracks, generally, were in very bad condition ; repairs were being made -to the pavement on the street, but those repairs had not been completed at the place at which the car Went off the track. It was apparently a perilous place, in consequence of the condition of the street. The plaintiff says that, noticing that fact, he had grasped the hand rail, but had released his grasp upon being called on by the conductor to pay his fare. The motion fox a nonsuit was made upon two grounds: First, that negligence on the part of the. defendant’s servant, the driver, was not shown, and, secondly, alleged contributory negligence' of the plaintiff, There was evidence (coming from the plaintiff himself) to show the negligence of the driver. Counsel for the plaintiff insists that negligence is to be imputed- to the defendant, from the mere fact that the car left the track, upon the authority of Edgerton v. N. Y. & H. R. R. Co. (39 N. Y. 227), and subsequent cases to the same effect. But the rule applied in that case refers..altogether to steam railways, and to cases where not only the vehicles but the tracks, are within the entire control of the “defendant. It would be grossly unjust to extend that rule to street railway companies which have not exclusive control over tlieir tracks or the roadway, but whose tracks are daily used by thousands of other vehicles, and are placed in public streets under the control of the city authorities, and in which work is constantly being done on or under the roadways and tracks. But there was in the testimony of the plaintiff, if it is to be believed, very positive evidence of negligence on the part of the-driver, and it is upon the theory that his statement may be true that the question of negligence should have been left to the-jury. The condition of the street and ' of the track, according to that testimony, was such as called, for more than ordinary care on the part of the driver. The difficulty of making progress was so-great, according to the plaintiff’s account, that the horse stopped, and it was (if the plaintiff’s story be true) the sudden blow with the whip that started the horse, whose plunging forward caused the car to leave the track. There was, therefore, some evidence of negligent conduct on the part of the defendant’s servant inducing the accident.

The learned judge held that it was contributory negligence on the part of the plaintiff to ride on the front platform, that not being the safest place for him. We assume that the learned judge meant the safest place under all the circumstances of the case. It is not negligence per se for a passenger to ride on the front platform of a street railway car. (Spooner v. B. C. R. R., 54 N. Y. 230; Sheridan v. B. C. & N. R. R., 36 id. 39; Clark v. Eighth Ave. R. R., Id. 135; Nolan v. B. C. & N. R. R. Co., 87 id. 63; Graham v. Man. Ry., 149 id. 336.) It is suggested that in the cases in which the rule referred to has been applied it appeared that the passenger on the platform was riding on a crowded car and could not find a seat in the interior; but that is not so, and the rule is not confined to such conditions only. In Nolan v. B. C. & N. R. R. Co. (supra) the facts closely resembled those in the case before us. There the plaintiff got upon a car of the defendant in which there were many vacant seats inside; he went to and was smoking upon the front platform; the' conductor took his fare; the driver struck one of the horses with his whip; the horse plunged, gave the car a jolt which threw the plaintiff off, and the plaintiff was run over and injured, and it was held that contributory negligence as a matter of law could not be imputed to the plaintiff from the fact of his riding upon the front platform, but that that question was one for the jury. In the opinion in that case the authorities are collated and criticised, and it is' stated that the rule is settled (independently of a statute not applicable to this case) that even with relation to ears on steam railways it is not- negligence per se for a passenger to stand on the front platform while the car is moving, and it is said that'the question is one of fact for the jury, taking into view all the circumstances of the ease.

We are referred by the counsel for the respondent to the case of Bradley v. Second Ave. R. R. Co. (90 Hun, 419) as an authority sustaining his contention that there was contributory negligence on the part of the plaintiff in this action, and that the plaintiff must be regarded as having assumed all the hazards of being in a more perilous place than he would have been in had he taken a seat in the interior of the car; but the decision in the Bradley case was based altogether ujDon the special facts there appearing in evidence, as the opinion shows. There the plaintiff went upon the front platform, out into the storm and darkness of the night; the tracks were icy and slippery ; it was snowing steadily all the time that he was upon the car, and the tracks were in a very slippery condition. The accident that occurred was attributed to the driver suddenly applying the brake, but nobody saw any such act of the driver, and it appeared “just as if there was a rock or something on the car track.”' The court considered that it was negligence for the plaintiff to ride on the front platform under such circumstances, or at all events that he assumed the risks of such an occurrence as that described, which might have been, as the court suggests, the result of the car -wheels striking some obstruction on the track. But under the facts as they might have been found in the case at bar, it not being negligence in itself for the plaintiff to stand on the front platform, the jury should have been allowed to consider all the circumstances that were in evidence, of the plaintiff protecting himself by grasping the hand rail and letting it go only in order to. pay his fare to the conductor, and all the other attendant circumstances that would either fix upon him or relieve him from the responsibility for doing something which he should not have done, or of omitting to do something he should, have done to prevent the accident.

We think the case was wrongly disposed of by being taken from: the jury, and that it should have gone to them on both questions involved.

The judgment and the order denying the plaintiff’s motion for a new trial must be reversed, with costs to the appellant to abide the event.

Van Brunt, P. J., Williams and O’Brien, JJ., concurred; Ingraham, J., dissented.

Ingraham, J. (dissenting):

I dissent on the ground that there was no evidence to justify a finding that the defendant was guilty of negligence. The only act that it was claimed was negligent was the striking of the car horse with a whip ; and it appears from the evidence that it was necessary that the horse should be urged in order to enable it to pull the car over the track.

I also think that the plaintiff took upon himself the risk attending a passage over this track upon the front platform of the car,, instead of going into the car, where he would have been entirely safe, and where the slight jolt, which was not felt by those inside the car, would not have injured him.

, Judgment and order reversed., new trial ordered, costs to appellant to abide event.  