
    D. Stryker Voorhees, Resp't, v. The Kings County Elevated Railroad Co., App'lt.
    
      (City Court of Brooklyn,
    
    
      General Term,
    
    
      Filed January 25, 1893.)
    
    Railroad—Negligence—Window of oar.
    It is the duty of a passenger before placing his hand or arm on the sill of an open window to see that it is raised to a sufficient height to be held by the catch, if in order; and the company is not liable for injuries-sustained thereby unless the catch is defective.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    
      W. W. Culver, for resp’t;
    
      Hirsh & Hasquin, for app’lt.
   Clement, Ch. J.

The plaintiff was a passenger on defendant’s train, and while seated placed his right arm on the sill of the open window, which suddenly fell and struck his little finger, whereby he sustained an injury. Plaintiff, on his direct examination, testified that he knew that the window, prior to its fall, was held by the catch, but on cross-examination admitted that he knew nothing about it, except that the window was up. It is just as probable that the window was not raised to the proper height as that the catch was defective. A passenger on an elevated car should either not place his hand on the window sill, or if he does, should look and see that the window is raised so that the catch rests upon the lip. The company, except in very warm weather, leaves it-to the passenger to determine whether the window shall be up or down, and a railroad employee is not bound to look, every time that a window is raised by a passenger, and see that it is put up to the proper height. We think that it was the duty of the plaintiff, before placing his hand under the window, to look and see that it was caught, and that the company was not negligent, unless the catch was defective, of which there was no proof in the case.

Judgment and order denying new trial reversed, and a new trial granted, with costs to appellant to abide the event.

Van Wyck, J., concurs.  