
    WILLIAM G. HALPIN, Plaintiff and Respondent, v. THE THIRD AVENUE RAILROAD COMPANY, Defendant and appellant.
    i. motion for a new trial on the minutes and appeal FROM AN ORDER ENTERED THEREON.
    1. What may be considered on.
    
      (a) Where there is no conflict iri the evidence the question whether it is sufficient to support the verdict is one of law, and may be-considered, on such motion, and, if found insufficient, a new trial should be granted.
    1. This although the point was not raised on the trial, either by a motion to dismiss or by motion for a direction of a verdict. 
    
    
      Semble. All questions that can be raised on a motion for a new trial made on a case at special term, and on an appeal from an order entered thereon, may be-raised on a motion for a new trial made on the-minutes and on appeal from the order entered thereon ; and nothing further is requisite to raise the questions in the latter mode, than is required in the former-
    
    H. NEGLIGENCE, CONTRIBUTORY.
    1. When question or law.
    (a) Where there is no conflict in the evidence hearing on this issue,, the question is one of law and not of fact.
    
    
      IH. STREET OARS, GETTING ON.
    1. CoNTRIBUTIVE NEGLIGENCE.
    
      (a) Crossing tracks.
    Plaintiff hailed a car going up when it was about seventy-five feet below the upper street crossing; at this time a car, then about one hundred feet off (which he saw), was rapidly approaching on the down-track; he crossed the down-track, and when he reached the space intervening between the two tracks (which was barely, if at all, sufficient to allow of standing there in any safety), he stood there waiting for the up-car to stop, which it did about seventy-five feet above the said upper crossing ; its platform was crowded, which he knew; while in the act of getting on its platform the horses of the down-car having been pulled by the driver into this space, knocked him down,
    Heed,
    
      As matter of law contributory negligence.
    
    Before Monell, Ch. J., and Sedgwick, J.
    
      Decided December 6, 1875.
    Appeal from a judgment and order.
    The action was to recover for personal injuries to the plaintiff, caused by the alleged negligence of the defendants.
    The plaintiff testified that himself and another person left Sweeny’s Hotel about six o’clock of the afternoon of June 3d, and hailed a Third avenue car that was going up-town; the car stopped, and we passed across the street to get on the rear platform. The other gentleman in front of me was partially upon the step, and I was as close to him as I could stand, when the car coming down-town came up even with the one we were getting on, and the horse which was running between the two tracks struck me on the left shoulder, and knocked me under his feet in on the track, and walked over me; the platform of the car coming down town struck me on the right shoulder; my head was badly cut, and my ribs were bruised from the hip up to the shoulder, and the shoulder bone was broken. I was taken out from between the horses’ feet and the platform of the car, and carried into Sweeny’s Hotel. There was a space between the tracks (the up and down-town of four or five feet actual measurement to be four feet six inches to five feet, varying at different points). The horses that struck me must have stepped almost the whole distance-between the tracks and eastward of the east line of the-down-track. I was as close up to the gentleman on the step of the other car as possible. The gentleman-who was with me was just before me, and he was-partially up on the step, and I was as close to him as I could stand, in order to let the other car pass, and I noticed there was ample room for me to stand there. I was very careful to get as close to the other car as possible. When I hailed the car, it was a little south’ of the north crossing. I saw horses attached to the car-coming down, but I paid no special attention to them. I am sure I attempted to get on the rear platform.
    A witness for the plaintiff testified, they (plaintiff and the person with him) hailed a car directly opposite the door (of Sweeny’s Hotel). The car stopped, and when the horses of the car going down came opposite to those of the up-town car, the driver pulled the reins, and threw the horses out into the space between the two tracks, and before the plaintiff could get his foot upon the platform the horses knocked him. One of the gentlemen was on the rear platform absolutely. It was somewhat crowded, and the plaintiff had hold of the iron railing getting on the platform. He was as close to the car as a man could be not to step on the car. There was nothing to obstruct the view between the plaintiff and the driver of the down car.
    On his cross-examination he testified that the car going up had got about seventy-five feet beyond the corner or upper crossing. “I had been detaining the plaintiff, and was asking him some questions, and that detained him a moment or so after the car was hailed.”
    Another witness for the plaintiff testified that by measurement, the space between the inner rails of the two tracks is from four feet six inches to five feet; it varies occasionally ; the cars are seven feet wide, and overhang the rails on each side almost one foot three inches, leaving the actual space between two passing cars of only thirty inches. There was no difficulty in the way of free passage of the cars without striking me, when I stood between the two passing cars.
    There was evidence on the part of the defendants that the plaintiff came rushing across the track to get in the up-town car, and was trying to get on the front platform.
    The plaintiff further testified : “I went straight across the street to the rear platform. I did not catch hold of the railing, and had one foot on the step. Captain Moriarty, who was in front of me, got hold of the railing. I stepped as close to him as possible, until I was knocked down by the horses.”
    Defendant made no motion to dismiss the complaint, and no motion that the jury be directed to render a verdict in its favor.
    The court charged the jury, that if the negligence -of the plaintiff in,any way contributed to the accident -or to the injury sustained by him, he could not recover.
    The jury gave the plaintiff a verdict.
    A motion was made on the judge’s minutes for a new trial, on the ground of insufficient evidence to support the verdict, which was denied, and an order to that effect entered. Judgment was entered in conformity with the verdict. Defendant appealed from the judgment and the order.
    Brown, Hall, & Vanderpoel, attorneys, and A. J. Vanderpoel and Mr. Greene, of counsel for appellant, urged, among other things :
    The verdict is clearly against the weight of the "evidence. It can only be sustained on the ground that the accident was occasioned solely by the neglect of the defendants (Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248). The'evidence on the part of both the plaintiff and defendants clearly showed that the accident was not occasioned solely by the negligence of the defendant’s servants.
    
      P. O'Beirne, attorney, Wm. H. O'Dwyer, and Algernon S. Sullivan, of counsel for respondent, among other things, urged:
    I. The exception taken to the judge’s refusal to charge as requested by the defendant’s counsel, is not well taken. The court may refuse to charge the jury as requested by a party, for the reason that he embraced within his charge already made, all the subjects contained in the request (Osborn v. Gantz, 38 Sup'r Ct. 148). The court in the general charge, clearly and distinctly included the propositions here made, as far as it was proper to be done. The refusal to charge, in the form requested, was correct; the subject-matter was one upon which there was conflicting testimony, and it was for the jury to determine the fact from the evidence before them. The question of negligence should be submitted to the jury, if there be conflicting evidence, or if the proofs leave the matter in doubt (4 Abb. Dig. 179). There is no error in refusal by the court to specify a fact alleged to be evidence of negligence, and to direct the jury to And a verdict on that fact for defendant. It is proper to leave it to the jury, with general charge (Baxter v. Second Ave. R. R. Co., 30 How. 222).
    
    II. There is sufficient evidence. There is a conflict of evidence. In cases where there is a conflict of evidence, “ the well-grounded rule that upon such evidence the verdict of a jury is conclusive, is applicable, and leads to an affirming of the order denying the motion for a new trial” (Knapp v. Roche, 37 Sup’r Ct. R. 395 ; The Fisk Pavemdnt and Flagging Co. v. Evans, Id. 482 ; Murphy v. Boker, 3 Robt. 1; 4 Abb. Dig. 141 ; Lewis v. Blake, 10 Bosw. 198 ; Cothran v. Collins, 29 How. 155 ; 6 Abb. Dig. 404, §§ 51, 52, 53).
    
      
       This overrules so much of the cases of Rowe v. Stevens (34 N. Y. Sup’r Ct. R. 436), and Carnes v. Platt (36 Id. 361), as holds to the contrary.
    
    
      
       In Morrison v. Erie Railway Co. (56 N. Y. 302), the learned judge in delivering the opinion of the court, on p. 307, says: “In this case, there are certain facts as to which there is and can be no dispute; and they are of such character and weight, that it is for the. court to say, whether there is room for doubt and query, but that there was a complete absence of that care and.prudence without which in the direction of conduct, there is negligence.” And further on the”question is asked, “Can it be said that a person of ordinary prudence would,”&c. And the query is answered, “I think not. And I am of opinion that it is so clear that the law and the court should have given the answer without calling in the aid of a jury.”
      
        . It would seem from this that the question as to whether there was “room for doubt or query,” was one of law and not of fact; for if of fact, then it was for the jury to determine, and they having determined that there was no room for doubt or query, it is difficult to see how the court of appeals could reverse such determination.
      The question then being one of law, it results that the court determined that the given state of facts appearing in that case established as matter of law contributory negligence; and necessarily held that the question, whether a given state of facts established contributory negligence was a question of law.
      The correlative proposition, viz., that the question whether á given state of facts establishes absence of contributory negligence is- a question of law, was not necessarily involved; and there are some expressions in the opinion which may indicate that there is some dif- . rence between the two propositions. It would seem, however, to naturally flow from the proposition which was decided. For, if in a given state of facts it is a question of law as to whether there is ‘‘.oom for doubts or query, but that there was a complete absence of that oare and prudence, without which in the direction of conduct, there is negligence;” it would seem to follow that on a given state of facts it is equally a question of law as to where there is room for doubt or query, but that there was a complete presence of that care and prudence, which in the direction of conduct relieves a party from the charge of contributory negligence.
      The observation on page 306, “that it is not sound to select one prominent and important fact which may occur in several cases, and to say that being present, there must as matter of law have been contributory negligence, ” does not militate against the views above expressed. If a case should arise quatuor pedis with Morrison v. Erie Railway, the court would certainly be obliged to follow that case, and hvld the plaintiff as matter of law charged with contributory negligence. So, if there were some differences between the details of «the two cases, it would seem that the determination as to whether the differences were substantial or immaterial would be a matter of law for the court to determine.
    
   By the Court.—Monell, Ch. J.

The appeal from the order denying the motion for a new trial authorizes an examination of the evidence to determine its sufficiency'to sustain the verdict.

The jury have found there was no contributive negligence of the plaintiff. The question was submitted to them as one of the facts which they must find favorably to the plaintiff, to authorize a recovery ; and having so found, their verdict should not be disturbed if there is any evidence to support it, or if the evidence on that subject was at all conflicting.

If, however, there is no conflict in the evidence, then its sufficiency is no longer- a question of fact, but becomes a question of law, to be determined by the court, and needs not the intervention of a jury.

Had a motion been made at the trial to dismiss the complaint, on the ground that the plaintiff had not shown himself to have been so free from fault as the law requires, it would have been competent for the court, and its duty, to have examined the evidence and determined the question.

So, if the court had been satisfied that the plaintiff had failed in his evidence in respect to this affirmative issue, it would have been proper to have directed a verdict for the defendants.

But it is not too late to move, either at special term on a case, or upon the minutes of the court, to set the verdict aside, whenever any affirmative issue has been found upon insufficient evidence, or against the clear weight of evidence (Allgro v. Duncan, 24 How. Pr. R. 210). And if the motion is denied, an appeal lies from the order to the general term (Code, § 349, sub. 2), where the sufficiency of the evidence becomes a question for the court, and its decision is final (Vermilyea v. Palmer, 52 N. Y. 471).

The court in thus reviewing the evidence determines as matter of law whether it is sufficient, and so far it becomes a question of law. Bor does its submission, as a question of fact to the jury, deprive the court of its revisory power; but in any stage and in any of the forms prescribed by law, it may examine and 'weigh the evidence and determine its sufficiency. And where the evidence is undisputed its sufficiency may be made wholly a question of law.

In Morrison v. Erie Railway Co. (56 N. Y. R. 302), the court says (p. 307) “in this case there are certain facts, as to which there is and can be no dispute ; and they are of such a character and a weight, that it is for the court to say whether there is room for doubt or query, but that there was a complete absence of that care and prudence, without which in the direction of conduct, there is negligence.” And in Reynolds v. N. Y. Cen. & H. R. R. R. Co. (58 N. Y. R. 248), it is said (p. 250), “that either by direct proof given by the plaintiff, or from the circumstances attending the injury, the jury must be authorized to find affirmatively that the person injured was free from fault which contributed to the accident, or the action can not be maintained. If this element is wanting in the case, the court may non-suit or set aside a verdict for the plaintiff”-

The affirmative of the issue of contributive negli.gence is upon the plaintiff, and when the evidence is closed and given to the jury, it must be sufficient'to support an affirmative finding (Squire v. Cen. Pk. N. & E. R. R. R. Co., 36 Sup'r Ct. R. 436, where at page 447, the cases are collated).

Courts can not and will not measure the degree of negligence. It is impossible to say whether the greater negligence of one party has contributed more than the lesser negligence of the other to the injury received. Hence the rule so long and securely established, holds the injured person to an absolute freedom from fault. If in any, the smallest degree, he by his act or conduct, or by omitting to exercise his faculties, or to .adopt the precautions which the occasion demands, brings upon himself the injury, the law affords him no remedy, however negligent may be the other party.

There is also another rule equally fixed, namely, that it does not require direct and positive proof that "the injured person, was without fault. It may be established by circumstances, and even sometimes inferred from the disposition of men to keep out of difficulty (Johnson v. Hudson R. R. R. Co., 20 N. Y. R. 71 ; Warner v. N. Y. Cen. R. R. Co., 44 Id. 465, 481).

And a further rule is that the facts and circumstances must be relatively considered as they vary infinitely and always affect and more or less control each other. Each must be duly weighed and relatively considered before the weight to be given to it is known '(Morrison o. Erie Railway Co., supra).

In reviewing the evidence in this casein the light of the principles of law which I have stated, it seems to me impossible to say, that the plaintiff did not in some degree—small it may be, yet enough to defeat a recovery—contribute, by his own negligence, to the injury for which he seeks redress.

This must be established by undisputed evidence.

We will take the plaintiff’s statement, and the other evidence he furnished.

The hour was six of a June afternoon, and consequently light. The plaintiff came out of Sweeny’s Hotel^which is on the north side of the street—in company with another. He was detained in conversation •after hailing an up-going car. To reach the car from the side of the hotel, he had to cross the down-track of the defendant’s road, upon which a car was approaching, and then some two hundred feet away, and which he saw. He attempted to get upon the car from between the tracks, standing there, while the down-coming car was passing over a space of two hundred feet.

The space between the tracks was only five feet, and between the sides of passing cars, only thirty inches, a space barely sufficient, if, indeed, it was sufficient, to allow of standing there in any safety. The plaintiff hailed the car when it was seventy-five feet below the upper crossing, and it stopped about seventy-five feet above the upper crossing. While passing over this one hundred and fifty feet, the plaintiff was either approaching the car across the down track, or standing between the tracks. The rear platform was somewhat crowded. The person accompanying the plaintiff had gotten upon the platform, ahd the plaintiff had one foot upon it when he was struck. Both were endeavoring to get upon the platform from between the tracks ; the car had stopped ; Moriarty had succeeded, and put himself out of danger ; the plaintiff failed to reach a place of safety.

The question is, Does not this undisputed evidence establish most clearly that the plaintiff, in attempting to get upon the up-going car, from the side of the street, in the manner and under the circumstances, did not exercise that common care and prudence which an ordinarily careful and prudent man would have exercised ?

It seems to me, it does not admit of doubt. He approached the car from the dangerous side of the street. He had to pass over the down-track, upon which a car was rapidly approaching. Instead of crossing the up-track to the opposite side of the street, where he could safely have awaited and entered the up-going car, he stopped between the tracks, with an intervening space of only thirty inches between the car he designed to enter and the car upon the other track. He saw the platform was crowded. He was behind his companion, and yet with the impending danger from the approaching car, he remained in this situation of peril until the horses struck him.

There was no evidence that Chatham street, at the place of the accident, is a very crowded thoroughfare ; and I suppose we can not take judicial cognizance of a fact so well-known to us all. But, as a matter of every-day observation, it is not safe or prudent, in any of our business streets or avenues, to get upon a streetcar from between the tracks, or from the opposite side of the street. Common prudence, and a proper regard for personal safety, should dictate that cars, in such crowded places at least, should be taken from the side of the street the least liable to expose the passenger.

It has long been a rule applied to cases of injury by steam railways, that a person approaching the railway, must use all his faculties, as well as every reasonable precaution, to discover the approach of a train. He must listen and look up and down the track, and approach the crossing with caution. The rule applies measurably to street railroads. A person can not recklessly run into danger, and hold the railroad responsible if he is injured. He must use his faculties, and if he sees a car approaching, he will not be held faultless, if he is injured in attempting to cross in front of it, unless there be sufficient time to do so safely.

The plaintiff attempted to do this. He saw the approaching car, and crossed in front of it. He could have gone quite across the street. That was his prudent course, and there entered the up-car. But he stopped between the tracks, and there waited for the up-car to pass far enough to bring the rear platform opposite to where he was standing, and all the time the down-car was rapidly approaching, and about to pass within a few inches of his person.

Looking at all this evidence, I can not persuade myself that there was not, not only a small or slight degree of-negligence on the plaintiff’s part, but such a large and unmistakable want of proper care and prudence on,his part, as should defeat a recovery.

The plaintiff is a man of intelligence, and at the time of the injury in the use of his limbs and faculties, and capable of understanding and appreciating the dangers of the situation.

There was time for prudent choice and correct apprehension of all the circumstances.

I am of opinion, therefore, that the evidence clearly - established the contributive negligence of the plaintiff, and upon that issue the verdict of the jury ought to have been for the defendants.

The order appealed from should be reversed, but as it is reversed upon the facts, it must be on payment of the costs of the trial.

In that event a new trial is ordered.

Judgment and order reversed, as above.

Sedgwick, J., concurred.  