
    Darby Ginnon, an infant, by John Ginnon, his guardian, plaintiff and appellant, vs. The New York and Harlem Railroad Company, defendant and respondent.
    1. In an action to recover damages for injury caused by the negligence of the defendant, no difficulty arises from making a distinction between gross and ordinary negligence, so far as the plaintiff is concerned; since any negligence on his part deprives him of all light of action.
    2. The doctrine that negligence is a pure question of law, when the facts constituting it are conceded, and must therefore be determined by the court,' was early admitted, and has been constantly adhered to, in the jurisprudence of this state. Per Robertson, Oh. J.
    3. The refusal or neglect of the driver of a street railway car to stop the same, so as to enable a passenger to descend safely, will not justify the latter in incurring an extra hazard, by descending from the car while it is in rapid motion.
    
      4. The fact that multitudes daily step in safety from railroad cars while the latter are in motion, does not necessarily relieve such act from the imputation of negligence, even when done with care. If there he no danger in such act, unless carelessly done, and the constant practice of mankind is proof thereof, the servant of the company will still he justified in recommending a passenger not to descend while the car is in motion, although the latter asks him to stop.
    6, If there is any danger in such an act, the passenger is as much bound to avoid it, as the railroad company are not to contribute to its occurrence. They are not responsible for the consequences of his own voluntary act. /
    6. In estimating the elements of danger, an injured party may be absolved, from an imputation of negligence by surprise created by noise, bustle, hurry and confusion. But only in case there was a rate of speed within which an attempt to step off cars in motion might safely be made, with ordinary caution, would any surprise which prevented the discovery of, or a mistake as to, the time when such degree of speed was reached, relieve the passenger from the charge of negligence in selecting an improper time to descend.
    (Before Robertson, Ch. J. and Monell and McCunn, JJ.)
    Heard November 19, 1864;
    decided December 31, 1864.
    Appeal from a judgment dismissing the plaintiff’s complaint, and from an order made at a special term, denying a motion for a new trial.
    Darby Ginnon, the plaintiff, a boy about 17 years of age, got upon one of the defendants’ city cars, with a large leather sack containing shoe trimmings. He was on the front platform with this sack. He did not ask the conductor for a seat. He did not try to go into the car. The conductor collected his fare, on the platform. ■ When the car got near Sixth street,- going up the Bowery, the plaintiff told the driver to stop. The driver did not stop. He spoke to him again, and he testifies that the driver told him to jump off, or get off. He did not speak to the conductor. He attempted to get off on the east side of the car. He took the bundle in his left hand, and took hold of the railing with his right hand. He put his left foot on the step, and as he was going to step off with his right foot, his left foot slipped, and went under the car, and was crushed by one of the wheels, before the car stopped. The plaintiff was in the daily habit of riding on the cars. He was in the employ of one Pepper, (a shoe dealer,) carrying shoes and collecting money from his employer’s customers. ,
    
      The action was brought-to recover damages for the above mentioned injuries to the plaintiff's person, which were alleged to have been caused by the defendant’s negligence. On the trial, the plaintiff requested the judge to submit specific matters of fact to the jury, and especially that he should leave it to their determination whether there was any want of ordinary care on the part of the plaintiff, contributing to the injury he received. The judge refused, and ordered the complaint to be dismissed.
    
      A. Matthews, for the appellants.
    I. The right to recover in this action depends upon the conclusion whether this boy exercised ordinary care or prudence, under all the facts and circumstances of this case, in getting ready to alight, or in endeavoring to alight, from the defendant’s cars, in obedience to their commands. This was necessarily an “ inference of fact,” from a proper estimate of all the cicumstances, and should have been submitted to the jury to decide.
    1. The legal principles enunciated by the courts of this state, in this class of cases, sustain this proposition.
    
      (a.) “As a general rule, questions of negligence belong exclusively to the jury.” Instances to the contrary “ must' be rare.” (By Court of Appeals, Selden, J., Bernhardt v. R. & S. R. R. Co., 23 How. R. 168.)
    (6.) “ If there are inferences to be drawn from the proof, which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in most cases it is, what a man of ordinary care and prudence would be likely to do, under the circumstances proved, this involving, as it generally must, more or less of conjecture, can only be settled by a jury. It is not easy to suppose a case in which the court would be warranted in holding, as a matter of law, that negligence was proved.” (Ibid.)
    (c.) Negligence is “ determined by an inference of the mind from the facts of the case ; and as minds are differently constituted, the inferences, from a given state of facts, will not always be the same.” “ Where either the facts or the inference to be drawn from them are in any degree doubtful, the better way is to submit the whole matter to a jury, under proper instructions as to the law, This is the more necessary in cases of negligence, because of the great variety of considerations which enter into that question. The same facts might constitute great negligence in one case which would scarcely amount to slight negligence in another. Again, negligence, which is nothing more than the want of care—proper care—is more or less affected by the conduct or action of the opposing party.” (Per Supreme Court, Hogeboom, J., McGrath v. Hudson River R. R. Co., 32 Barb. 147.)
    
      (d.) “ Negligence is in all instances a question of fact, and it is only where a question of fact is entirely free from doubt, that the court has a right to apply the law without the action of the jury.” (Per Supreme Court, Ingraham, J., Bernhardt v. R. and S. R. R. Co., 19 How. 204.)
    (e.) “ It by no means necessarily follows, because there is no conflict in the testimony, that the court is to decide the issue between the parties as a question of law. The fact of negligence is very seldom established by such direct or positive evidence that it can be taken from the consideration of the jury and pronounced upon as matter of law. Presumptions of fact, from their very nature, are not strictly objects of legal science, like presumptions of law.” (By Court of Appeals, Johnson, J., Ireland v. Oswego Plank R. Co., 13 N. Y. Rep. 533. See also Keller v. N. Y. Central R. R. Co., 24 How. Rep. 174.)
    2. The practice of the court in this class of cases, in the application of these rules, is in conformity with the plaintiff’s request. (Clayards v. Dethick, 12 Adol. and Ell. N. S. (64 Eng. C. L. R.) 439. Ireland v. Oswego, &c. P. Road Co., 13 N. Y. Rep. 526. Brown v. N. Y. Central R. R. Co., 31 Barb. 385. McGrath v. Hudson River R. R. Co., 32 Barb. 146. Bernhardt v. R. & S. R. R. Co., 19 How. 199. S. C. Court of Appeals, 23 How. 166. Keller v. N. Y. Central R. R. Co., 24 How. 172. Drew v. Sixth Av. R. R. Co., 26 N. Y. Rep. 49. Meyer v. Second Av. R. R. Co., 8 Bosw. 305.)
    
      II. The inference of negligence on the part of the plaintiff might perhaps have been made by the jury, but it was not so clear as to be decided without their intervention.
    
      C. W. Sandford, for the respondent.
    • I. A plaintiff suing for injuries caused by negligence of the defendants or agents, must fail unless he can show that he was free from negligence himself. (Wilds v. Hudson River R. R. Co., 24 N. Y. Rep. 430.)
    II. To carry a case to a jury, the evidence on the part of the plaintiff must be such, as if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendants. (Wilds v. Hudson River R. Co., supra. Johnson v. same, 20 N. Y. Rep. 73. Steves v. Oswego and Syracuse R. R. Co., 18 N. Y. Rep. 422.)
    III. Negligence is a question* of law, where there is no dispute about facts, and a nonsuit should be ordered when the proof will not warrant a recovery against the defendant. (Wilbrand v. Third Av. Co., 3 Bosw. 314. Haring v. N. Y. and Erie R. R. Co., 13 Barb. 9. Terry v. N. Y. Central R. R. Co. 22 Barb. 574. Willetts v. Buffalo and Rochester R. R. Co., 14 Barb. 585. Spencer v. Utica and Schenectady R. R. Co., 5 Barb. 337. Hatfield v. Roper, 21 Wend. 615. Tonawanda R. R. Co. v. Munger, 5 Denio, 255. S. C., 4 Comst. 359. And the three cases cited on second point.)
    
    IV. The plaintiff's negligence was the cause of the accident. He had no right to interfere with the driver. The conductor was the sole manager of the car. He should have applied to him to stop the car. His attempt to jump from the car, was gross negligence. He should have remained on the car until it did stop.
   By the Court, Robertson, Ch. J.

The main questions in this case are the sufficiency of the evidence to establish negligence on the part of either or both parties. No difficulty arises from drawing the line of demarcation between gross and ordinary negligence, since any negligence on the part of the plaintiff deprives him of all right of action. ( Wilds v. The Hudson R. R. Co., 24 N. Y. Rep. 430.)

The doctrine that negligence is a pure question of law when the facts constituting it are conceded, and must therefore be determined by the court, was early admitted, and is constantly ■ adhered to in the jurisprudence of this state. (Foot v. Wiswall, 14 John. 304. Steves v. Oswego and Syracuse R. R. Co., 18 N. Y. Rep. 422. Dascomb v. Buffalo and State Line R. R. Co., 27 Barb. 221.) However much language inconsiderately employed in some cases may seem to throw a doubt upon it, it is true the cases do not always clearly distinguish between the facts which constitute and the circumstances which establish negligence, and do not define the nature of the facts whose admission makes negligence entirely a question of law. The mere circumstances of a case, as they are termed, may not be the subject of conflicting evidence and yet how far they may establish the essential fact of negligence by inference when they do not do it directly, is a proper question for a jury. (Dascomb v. Buffalo and St. Line R. R. Co. ubi sup.) As negligence, is the absence of the care and vigilance usually bestowed by prudent men either in a transaction of a particular kind, (Ernst v. Hudson R. R. Co., 24 How. Pr. 97,) or generally in all their actions, (Center v. Finney, 17 Barb. 94,) what would be such care in a particular case may be a subject of inference from numerous facts and circumstances, and may therefore be properly submitted to a jury. Thus, caution in the construction of a public work, (Brown v. Mohawk and Hudson R. R. Co., How. App. Gas. 66; Polar v. N. Y. Central R. R. Co., 16 N. Y. Rep. 476,) and care in the transportation of merchandise, have been held to be proper questions for a jury.

Cases of negligence are not taken out of the general rule, that a plaintiff should be nonsuited when a verdict in his favor would be set aside as against the weight of evidence. (Wilds v. Hudson R. R. Co., ubi sup.) There are certain acts which it is clear no person of ordinary foresight and caution would do or fail to do, as the case might be. To drive a wagon across a railroad without previously looking out for a locomotive is negligence in law. (Brooks v. Niag. Falls R. R. Co., 27 Barb. 532. Owen v. Hudson River R. R. Co., 2 Bosw. 374. Dascomb v. Buffalo &c. R. R. Co., ubi sup.) So to permit an infant to wander into a highway unattended, (Hartfield v. Roper, 21 Wend. 615,) unless excused by the other circumstances of the case, (Oldfield v. N. Y. and Harlem R. R. Co., 14 N. Y. Rep. 310,) or a lunatic to remain unattended in a railway car, who was ejected for not paying his fare ; Willetts v. Buffalo &c. R. R. Co., (14 Barb. 585,) was equally so. And there are Other acts which are undoubted acts of negligence. To spring from a car when moving at a high rate of speed, except for the purpose of saving one’s life or limbs, (Eldridge v. L. Island R. R. Co., 1 Sandf. 89,) would, in law, clearly be such an act as to exempt the owners of the cars from all responsibility for any injury produced thereby. It would be an act of negligence, at least, if not willfulness. Whether stepping or jumping off while the cars were at a less or low rate of speed, would be so palpably an act of negligence as to be a matter of judicial cognizance, and therefore a question of law, is to be considered, as upon the determination of that question-this case turns.

The propriety of the plaintiff’s presence on the front platform of the car, from which he attempted to step when he received the injury complained of) and the effect of the direction of the driver to him to leave, at least so far as it was at all coercive, were equally immaterial on the question. Such presence was by consent of the agents of the company, and therefore rightful; besides the injury was not received by being there, but in the attempt to leave. The suggestion of the driver, whether it was to get off, or jump off, was not in fact and was not intended as a command to be enforced, or which any demonstration was made to enforce. At the most it was a mere advice or a' direction. Whether the plaintiff could be absolved from a charge of negligence to which he would otherwise have been amenable, by following such advice, presents other considerations.

The refusal or neglect of the agents of the defendants, to stop the cars and enable the plaintiff to descend safely, did not justify him in incurring extra hazard, if any, by descending from the cars while in motion. He had an ample remedy for being carried beyond his intended stopping place. Such an abduction would closely resemble false imprisonment. Yet restraint of one’s liberty in any other mode, would not render the party guilty of such restraint liable for damages for an injury sustained by the imprisoned party in a desperate and reckless attempt to escape, unless under a reasonable apprehension of greater evils by remaining confined, similar to the act of springing from cars to avoid a greater prospective injury.

The fact that multitudes daily step in safety from railroad cars while in motion does not necessarily relieve such act from the charge of negligence, even when done with care. If it does, it either makes the plaintiff’s injury the result of an unforeseen cause or of some inattention or carelessness on his part. If there be no danger in such act, unless carelessly done, and the constant practice of mankind is proof thereof, the agent of the company was fully justified in recommending the plaintiff to descend while the car was in motion^ although he asked him to stop. If there was any danger in such an act, the plaintiff was as much bound to avoid it as the defendants were not to contribute to its occurrence. They are not responsible for the consequences of his own voluntary act. If such stepping off the cars, while in motion, were a safe and usual mode of quitting them, the plaintiff, if embarrassed by any hurry, surprise or confusion, should have displayed such embarrassment to the agents of the defendants in order to enable them to exert extraordinary caution for his protection in the case. But there was no evidence of any surprise ; the mere direction of the driver to get off should not produce any surprise if it were an ordinary occurrence. In estimating the elements of danger, an injured party may be absolved from an imputation of negligence by surprise created by noise, bustle, hurry and confusion. But only in case there were a rate of speed within which an attempt to step off cars in motion might safely be made with ordinary caution would any surprise which prevented the discovery of, or a mistake as to, the time when such degree of speed was reached, relieve the person stepping off, from the charge of negligence in selecting an improper time to descend.

There are no circumstances in the case, bearing on the question of due caution by the plaintiff, to modify the character of his actual conduct in stepping from the cars while in motion, except his request to stop, and the suggestion by the driver to him to descend ; neither of which alter it. All the evidence as to his youth and inexperience, his previous riding in the cars, his payment of his fare on the front platform, his inability to procure a seat inside of the car or to reach the conductor when desirous of getting off, by reason of the mass of passengers in the car, was, for reasons already given, quite immaterial ; none of such facts affect the question of negligence in getting off the car while in motion. They did not warrant his so getting off and incurring an unnecessary hazard, rather than be carried out of his way. Such risk was not the natural and necessary consequence of such circumstances. If any act had been done by any of the agents of the defendants to induce the plaintiff to believe the car was about to be stopped, and in consequence thereof he stepped off, believing that it was stopped, there might be some reason for making the defendants responsible. But there is not the slightest evidence of any such act in the case.

The refusal of the driver to stop being an act not of negligence but willfulness, it is not to be assumed that he expected that the plaintiff would take the risk of stepping off while the car was in motion. The cause of action in this case, properly stated, should therefore rather be, attempting to carry the plaintiff beyond his stopping place, against his will, and after a request by him to stop. In such a case he could hardly recover for damages incurred by attempting to quit the car while in motion. The refusal to stop was also not the immediate cause of the injury. His own act of stepping off before the car was stopped which was such cause, although provoked, was not caused by such refusal, and therefore the latter cannot be claimed to be an act of negligence which gave a right of action. Nor am I prepared to admit that the direction of the driver to leave, given and received as advisory, could make a case of negligence against the defendants, any more than it could excuse the plaintiff’s want of care in stepping off while the cars were moving. Even if he were authorised to give such advice, it could only be construed as a representation or warranty of safety ; for injury from following which, the action should be on contract, and not in tort for negligence. There is no allegation in the complaint that the plaintiff’s incautious act of stepping off before the cars had stopped was in consequence of any such express or implied representation by the defendants or their agents as to the security of such act.

If there be any degree in the speed at which a car is required to move in order to make stepping from it, while moving at that rate, negligence as matter of law, although motion at an inferior rate would not have the same effect, there was no proof of the speed in this case. And the actual result of such act in question is at least prima facie evidence that the speed at which the car was moving at the time of the accident rendered it dangerous so to step off, and there was no evidence to the contrary.

The complaint was therefore properly dismissed, and the judgment should be affirmed, with costs.

McCunn, J. dissented.

Judgment affirmed.  