
    Annie M. Merrill, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence—injury because of one passenger being thrown upon and injuring another at a street railroad curve—care required of the railroad company — what may not be considered by the jury, in the absence of proof of excessive speed or that the roadbed was defective or the car out of order, or that the conductor failed to give notice to passengers.
    
    Where, in an action to recover damages for personal injuries sustained by the plaintiff, while a passenger upon one of the defendant’s street cars, in consequence of the fact that while the car was traveling around a curve another passenger, who was in the act of entering the car from the platform, was thrown against the plaintiff by a violent jolt or jerk of the car, there is no evidence as to the speed at which the car was going around the curve or that the conductor failed to warn the passenger who was thrown upon the plaintiff as the car was approaching the curve of the proximity thereof, the court may refuse to charge that “ although such common carrier is not an insurer of the safety of passengers, it is its duty to use a very high degree of care and skill to prevent any injuries to them,” and may charge that “the measure of duty on the part of the defendant's servants was to conduct themselves with reasonable care, under all the circumstances, with a view of protecting their passengers.”
    In the absence of excessive speed or the application of more power than was necessary to round the curve, the jury would not in such a case he justified in finding that the defendant was negligent.
    
      The court may properly refuse to allow the plaintiff to show whether there had been anything peculiar in the motion of the defendant’s cars when rounding the curve in question on other occasions, where there is no allegation in the complaint that the roadbed was out of order or improperly constructed or that the car was not a proper car. Such evidence is not admissible for the purpose of showing that the motion of the car when rounding the curve was such as to require the conductor to give notice to the passengers of the proximity of the curve, where it does not appear that the conductor failed to give such warning to the passenger who fell against the plaintiff. For the same reason the court may also refuse to allow the plaintiff to show that it was customary for the conductors to give such notice.
    The refusal of the court to charge that it was the duty of the defendant to make necessary rules and regulations for the protection of its passengers from injury, and that a failure to make such reasonable rules constituted negligence on the part of the carrier, is not improper, where there is no evidence in the case that the defendant had not made such rules and regulations, or that the accident had any relation to any violation of the rules of the company.
    O’Brien and Hatch, JJ., dissented.
    Appeal by the plaintiff, Annie M. Merrill, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of December, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of December, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      George A. Stearns, for the appellant.
    
      Theodore H. Lord, for the respondent.
   Ingraham, J.:

The plaintiff was on July 30, 1895, a passenger upon a cable car operated by the defendant. As the car was going around a curve from Fifty-third street to Ninth avenue the plaintiff was seated in the car, and another passenger, who was in the act of' entering the car from the platform, was thrown upon the plaintiff by a violent jolt or jerk of the car from which she sustained injuries. There was no evidence as to the speed at which the car was going around this curve, or that the conductor failed to warn the passenger who was thrown upon the plaintiff as the car was approaching the curve. The sole fact relied upon by the plaintiff is that as the car rounded the curve a passenger attempted to enter the car, when by a violent jerk he was precipitated upon the plaintiff. The court submitted to the jury the question as to whether the car was going at an improper or unusual rate of speed, who found a verdict for the defendant. The main question presented is as to the refusal of the court to charge that although such common carrier is not an insurer of the safety of passengers, it is its duty to use a very high degree of care and skill to prevent any injuries to them.” This the court refused and charged the jury that the measure of duty on the part of the defendant’s servants was to conduct themselves with reasonable care under all the circumstances with a view of protecting their passengers,” as applicable to the particular facts in this case, basing such instruction upon the cases of Stierle v. Union Railway Co. (156 N. Y. 70) and Ayers v. Rochester Railway Co. (Id. 104), and we think that in view of the decision of these cases the charge was correct. In the Stierle case the court said that “ The obligation of carriers of passengers to exercise the highest degree of care which human prudence and foresight can suggest only exists with respect to those results which are naturally to be apprehended from unsafe roadbeds, defective machinery, imperfect cars and other conditions endangering the success of the undertaking. * * * In every case, the degree of care to be exercised is dependent upon the circumstances, and, if the accident is attributable to the existence of defects in the road, or in the mechanical appliances availed of for the operation of the railroad, by reason of which there was a possibility of loss of life or limb to the traveling public, the strict rule requiring the highest degree of care and of human skill would be applicable.” In that case the plaintiff was injured because of the alleged negligent .manner in which the driver of the car attempted to switch his car from one track to another to cross the Harlem river bridge, and it was held that under those circumstances the defendant was only liable for the failure of the driver to use that skill and care which would be required by an ordinarily careful and prudent man. In this case the plaintiff was injured by a passenger falling on her, which fall was caused by a jerk in the car rounding a curve, and the same rule as to the degree of care would seem to be applicable. In the Ayers case the plaintiff was a passenger and after she had got upon the car and was about to take a seat it gave a sudden jerk which threw her back on the seat and twisted her knee. It was held that in the absence of evidence as to the speed of the car, or that there was an excess of power used while passing the curve, there could be no recovery, and applying this rule it would seem that there was no evidence of negligence in this case. There was nothing here to suggest that this passenger, in entering the car when he did, would cause an injury to the other passengers. In the absence of excessive speed, or the application of more power than was necessary to round this curve, there would certainly be no evidence to justify the jury in finding that the defendant was negligent, and the jury having found that the speed of the car was not excessive the defendants were entitled to a verdict.

The cases of Keegan v. Third Ave. R. R. Co. (34 App. Div. 297; affd. in 165 N. Y. 622) and Zimmer v. Third Ave. R. R. Co. No. 1 (36 App. Div. 265) do not apply. In those cases the negligence of the defendant was predicated upon the improper operation of- the car, and in the operation of its car there can be no doubt but that the defendant is bound to exercise the greatest care for the protection of the passengers; but here there was no evidence that such care was not exercised, as the mere fact that the car gave a jolt in turning the curve was not sufficient to justify a finding that more power was used than was necessary for the purpose. The plaintiff testified that she had ridden on this line around this curve from 75 to 100 times prior to the accident, and she was asked: Did you observe anything peculiar in the motion of the car in going around these corners at 53d Street and Broadway and 53d Street and Ninth Avenue ? ” That was objected to by the defendant and the objection sustained, but I do not think that this was error. The question related to a peculiarity in the motion of the cars of the defendant’s road in rounding the curve on former occasions. There was no allegation in the complaint that the roadbed was out of order or improperly constructed, or that the car was not a proper car, properly equipped for the purpose for which it was used, and it seems to be entirely immaterial whether there had been anything peculiar in the motion of the cars at other times when rounding this curve. The plaintiff claims that this was relevant to show that the motion wás such that the conductor was required to give notice to the passengers of the approach of the curve ; but as there was no evidence to show that such notice was not given at the time of the accident, the evidence was immaterial for that purpose, even if it would have been competent to predicate negligence upon the fact that no such notice was given. This would also apply to a refusal of the court to allow the plaintiff to show that it was customary for the conductors to give such notice.

The fact that the person who was thrown upon the plaintiff had been talking to the conductor while the car was going through Fifty-third street would also seem to be immaterial, as this conversation with the conductor had no relation to the accident. The conversation between the plaintiff and the conductor after the accident was plainly immaterial, was not part of the res gestee, and had no relation to the cause of the accident. The request to charge that it was the duty of the defendant to make necessary rules and regulations for the protection of its passengers from injury and a failure to make such reasonable rules therefor was negligence on the part of the carrier, was properly refused, as there was no evidence in the case that the defendant had not made such rules and regulations, or that this accident had any relation to a violation of the rules of the company. The other requests to charge that were refused are covered by what has been already said as to the duty resting upon the defendant, and do not require further discussion. All of these requests to charge are to be judged by the facts in this particular case, and while they undoubtedly contain a correct statement of the law affecting an accident caused by a failure of the defendant to provide a suitable roadbed and cars or to properly operate them, they were not applicable to a case where the injury to the passenger was caused by the act of another passenger, over whom the defendant’s agents had no control.

It follows that the judgment and order appealed from should be affirmed, with costs.

McLaughlin, J., concurred; O’Brien and Hatch, JJ., dissented.

Patterson, J. (concurring):

I concur in the general views of the case, as expressed in the opinion of Mr. Justice Ingraham, but I do not concur in the inference that may be drawn therefrom that Stierle v. Union Railway Co. (156 N. Y. 70) is authority controlling under any other state of facts than such as appear in the record in that case.

O’Brien, J. (dissenting):

I dissent from the conclusion reached by the majority of the court in this case, thinking as I do that error was committed upon the trial in refusing to permit the plaintiff to show, as alleged in the complaint, that the place where the accident occurred was well known to be dang'erous and it was customary for the conductor on approaching said spot to give warning to all passengers in order that they might secure themselves against the jolt, jar or strain which experience had taught was likely to occur in turning said corner.” The complaint had further alleged “ that no warning of the approach to this dangerous place was given, nor was any effort made to prevent the man from entering the car at that moment,” and “ that the injury to plaintiff occurred * * * solely by reason of the negligence * * * of the said * * * Company, its servants and employees in the management and running of its said car in not having proper rules for the management and running of its cars or in neglecting to apply such rules on the occasion referred to in permitting said car to go around the said, curve at Fifty-third Street and Ninth Avenue at a great and unsafe rate of speed and in failing to call the attention of the passengers to the approach to this dangerous turn and in permitting the man herein mentioned * * * to enter the said car at the moment of turning this dangerous curve.”

Although the summarized evidence presented in the record upon this appeal on which reliance is solely placed upon certain erroneous rulings, does not show either that the car was going at an excessive rate of speed or that no warning was given just prior to the accident, the court, in charging the jury, said : “ You have the evidence of the plaintiff herself, who states that the speed of this car while going or being driven around the turn was from ten to twenty miles an hour and that the speed was much accelerated just before the curve was reached. She states that the speed of the car while going around the curve was twice as great as while it was coming down the street. Now there is no contradiction of her testimony; no evidence has been offered by the defendant to dispute her; no reason has been given why the defendants have not put the conductor upon the stand.” And, subsequently, when the plaintiff requested that the jury be charged that if the carrier knew or had reasonable grounds to believe that the car in turning * * * would be jolted * * * so that injury would possibly result to passengers seated or standing, it was its duty to warn its passengers that they might secure themselves from injury,” the court replied: “ I refuse to charge further than I have already instructed the jury ; that there is no duty resting upon the defendant to warn people, and yet the failure to voltmteer such a warning may be taken into consideration in determining whether proper care has been observed in the railroad company in the operation of its car with respect to speed.”

Apparently, therefore, evidence was given on the trial both that the car rounded the curve at an excessive rate of speed and that there was no warning. The question, however, which is presented upon this appeal is whether the court erred in the theory upon which the case was tried in refusing to receive testimony offered to show that the place where the accident occurred was an especially dangerous one calling for more than ordinary care on the part of the defendant. The case cited in the prevailing opinion of Stierle v. Union Railway Co. (156 N. Y. 70) recognizes that “if the accident is attributable to the existence of defects in the road, or in the mechanical appliances availed of for the operation of the railroad, by reason of which there was a possibility of loss of life or limb to the traveling public, the strict rule requiring the highest degree of care and of human skill would be applicable.” Evidently with this rule in mind, the attorney for the plaintiff after she had testified that several times a week she had ridden around this corner and at least 75 or 100 times prior to the accident, asked her, “ Did you observe anything peculiar in the motion of the car in going around these corners at 53d Street and Broadway, and 53d Street and Ninth Avenue ? ” and objection was made ' except it be confined to the day and time when the accident happened.” Plaintiff’s counsel then stated that he wished to show the manner in which * cars went around these corners and the custom of giving warning • upon approaching the curves, but the objection was sustained, the court saying: “ The inquiry should relate to the particular occurrence whether at the time in question this defendant conducted itself with proper care in the operation of this car around this angle ; ” and when asked if it might be shown that ordinarily the warning to “hold fast” was given, answered : “No, because there is nothing in the law to require them to do that,” and exception was taken. As already pointed out, the court thereafter in charging the jury refused the plaintiff’s request that if danger was to be apprehended in rounding the curve warning should be given ; and there were a number of requests to charge that if a high degree of care would have prevented the accident, such care should have been exercised by the defendant, which were denied, the court saying that “ the measure of duty on the part of the defendant’s servants was to conduct themselves with reasonable care under all the circumstances with a view of protecting their passengers.” Such instruction was entirely consistent with the case as it stood with all evidence of the dangerous character of that part of the roadbed where the accident occurred excluded; but had such evidence been admitted, as, in view of the allegations of the complaint, I think it should have been, then the plaintiff would have been entitled to have the jury charged that if they found that danger was to be expected in rounding this curve, due to the jolting of the car, a degree of care was called for on the part of the defendant in avoiding injury to its passengers therefrom.

For the error, therefore, in excluding the evidence offered to show the dangerous character of the curve or of the movement of the car in rounding it, I think that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Hatch, J., concurred.

Judgment and order affirmed, with costs. 
      
      
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