
    Lyman C. Vroman, App’lt, v. Houston, West Street and Pavonia Ferry Railroad Company, Resp’t.
    
      (New York City Court, General Term,
    
    
      Filed February 8, 1894.)
    
    Appeal—Dismissal op complaint.
    The complaint is properly dismissed, where, in an action for negligence, the company was guilt of no act of negligence and did nothing by means of which the plaintiff was injured.
    Appeal by plaintiff from judgment entered after the dismissal of the complaint at trial term.
    
      C. D. Lamb for app’lt; Couderl Brothers & J. Kling for resp’t.
   Ehrlich, C. J.

On the evening of June 13, 1892, the plaintiff with some friends boarded an open summer car of defendant y having steps running along upon the outside. The plaintiff stood for a time on the rear platform, smoking. As the car neared Forty-second street some people got out, and the plaintiff undertook to proceed along the side step to occupy one of the seats vacated. The change was voluntary on his part, and, while he was attempting to consummate it, his head was brought in contact with an elevated railroad column and badly injured. At the trial the complaint was dismissed, on motion of the defendant’s attorney, and we think the dismissal was right. The defendant was guilty of no act of negligence, and did nothing by means of which the plaintiff was injured. The defendant was not responsible for the presence of the elevated railroad columns nor for any injuries caused by them. The case resembles that of Murphy v. Ninth Avenue Railroad Company, 6 Mise. B. 298; 58 St. Bep., 140, in which it was held that the defendant, under similar circumstances, was not liable. The distinction between the rules decided in the cases cited by the appellant and that which governs this case is clearly laid down in the Murphy case; and for the reasons stated the judgment appealed from should be affirmed with costs.

Yan Wyck, J. concurs.

Fitzsimons, J. (dissenting)

In my judgment, it was error for the trial justice to dismiss the complaint in this case. It was a question of fact for the jury to determine whether or not the defendant was negligent and the plaintiff free from contributory negligence. It was the duty of defendant to run its road along a way which was not dangerous. The fact that the iron post against which plaintiff struck and was injured was erected by the E. B. B. subsequent to the time when defendant built its road would not justify defendant in continuing to use its road as far as its passengers are concerned if by so doing it became a dangerous thing to do. It should have prevented the E. B. B. from placing its pillars in a place where they would injure persons riding on defendant’s cars who prudently and carefully did so or else should have removed its rails farther away from such pillars, or so constructed the platforms on its cars as to permit its passengers to use them without harm from such dangerous things. This duty defendant owed its passengers. A failure to do so I think constituted negligence on defendant’s part because- of the length of time that said pillars and defendant’s road occupied their- present positions. Concerning the alleged contributory negligence of plaintiff ; the plaintiff had a right to' a seat in defendant’s car in fact it was his duty to take one as- soon as possible. When he boarded it all the seats were occupied he was compelled to stand on the rear platform, at the moment when a passenger having a' seat left the car, plaintiff exercised his right to have a seat by proceeding along the only passage way from the place where he stood to the vacated seat. Whether or not he did so in a careful or careless manner particularly in view of the facts above recited and in addition that it was night time and he was not familiar with that part of the defendant’s road, and that he had a right to assume that it was free and clear from all danger; was a question of fact for the jury to determine and not a question of law for the court to decide. For these reasons I think that the judgment should be reversed and a new trial ordered with costs to appellant to abide event.  