
    DAVIS, ADMINISTRATRIX, Plaintiff and Appellant, v. THE THIRD AVENUE RAILROAD COMPANY, Defendants and Respondents.
    
      Negligence Case.
    
    Before Speir and Sanford, JJ.
    
      Decided March 20, 1876.
    
      I. SUBMISSION TO THE JURY.
    1. Not required in all cases where there is conflict of testimony.
    
      (a) Preponderating evidence.
    
    1. Where the evidence in favor of either party is so prepon derating as to require that an adverse verdict, if rendered, should be set aside, they «¿ye is not justified in submitting the case to the jury.
    
    This is an appeal from a judgment entered on a verdict in favor of defendants, rendered March 4,1874, by direction of the court, after a trial before the Chief Justice and a jury.
    The action was brought by the plaintiff, as administratrix of her deceased husband, to recover the damages sustained by his estate in consequence of his death, which is alleged to have been occasioned by the negligence of the defendants.
    It appeared that plaintiff got on one of defendant’s cars while in a state of intoxication,- and the conductor, refusing to receive his fare, ejected him from the car. He was put off on the left hand side of the car, in front of the car coming from the opposite direction He fell against the horses of the other car, and then under the car.
    
      The only exceptions taken, were “to the charge, and to each and every part thereof,” and to the ruling or decision of the court, directing the verdict.
    Only so much of the points made by counsel as will serve to show the bearing of the decision of the court will be given.
    
      Oscar Frisbie. attorney, and of counsel for appellant, urged :
    I. The question of intoxication was one for the jury and not for the court, and if it had been submitted to them and they had 'found that fact against the plaintiff, it would not even then have made any difference with her case, unless they further found that the intoxication contributed to produce the injury complained of. If the deceased was intoxicated, that fact did not cause the injury; it was the fact that deceased was pushed off the car on the left hand side instead of the right hand side of the car, and the further fact that he was pushed off baclcward instead of forward (Haley v. Earle, 30 N. Y. 208 ; Alger v. Lowell, 3 Allen, 402 ; Robinson v. Pioche, 5 Cal. 460 ; Healy v. The Mayor, 3 Hun, 708).
    
    II. If, as the judge remarked, the deceased was a trespasser'on the car of the defendant, that fact forms no defense to this action, under the circumstances of the case; in it, the defendants could only find an excuse for ejecting him, but can not shield themselves from liability, from a rash and careless act, the consequence of which must necessarily be attended in a great degree with peril; because he was a trespasser it would have no right to throw him under the wheels of a car going upon its track at full, speed, nor would it give a right to use force in any other wa.y than in a careful manner. If a man forces himself into my house against my will and in defiance of law, I can not throw him out of a fourth story window, and shield myself from the consequence of such an act by saying you are a trespasser. I may use force enough to put him out, but I must do it in such a way as not to hazard his life or limb (Rounds v. The Dela. L. W. R. R. Co., 3 Hun, 329; Sanford v. Eighth Avenue R. R. Co., 23 N. Y. 343).
    III. The platform of the car and the street were icy, and the car in motion at the time the attempt was made to eject the deceased ; under such circumstances he had a right to resist, although a trespasser (Sandford v. Eighth Avenue R. R. Co., supra).
    
    IV. On a motion for a non-suit, all the contested facts, with all the presumptions and inferences that the jury may properly draw from them, are to he held in favor of the plaintiff. It was not the province of the court to say whether what the deceased actually did or omitted, constituted negligence, that was for the jury exclusively (Sheridan v. Brooklyn R R. Co., 36 N. Y. 39 ; Colgrove v. New Haven & H. R. R. Co., 20 Id. 492 ; Ernst v. H. R. R. Co., 35 Id. 25 ; he also cited Putnam v. Broadway and Seventh Avenue R. R., 55 Id. 114).
    Vanderpoel, Green & Cuming, attorneys, and A. J. Vanderpoel and Almon Goodwin, of counsel for respondent, urged:
    I. The defendant did not owe to the deceased the same care which it owed to its passenger. The deceased was a trespasser from the beginning. The conductor rightfully treated him as such, and neither collected nor tried to collect any fare from him. Being a mere trespasser, no right of action could accrue to him or his administratrix, by reason of any negligence on the part of the defendant. This question is very fully discussed by Beardsley, J., in The Tonawanda R. R. Co. v. Munger, 5 Denio, 255. The rule is clearly stated at pp. 268, 267. A new trial of that action was had, and the question finally came before the court of appeals, sub nomine Munger v. 
      Tonawanda R. R. Co. (4 N. Y. 349). The ground taken by Mr. Justice Beardsley was fully sustained, and bis opinion specially noticed and approved (p. 359). In Robertson v. N. Y. & Erie R. R. Co. (22 Barb. 91), it was held that a person riding upon an engine, although with the permission of the engineer, was not lawfully upon the engine, and could not recover for injuries caused by the negligence of the railroad company (see also Moss v. Johnson, 22 Ill. 633 ; Lawrenceburg, &c., R. R. Co. v. Montgomery, 7 Ind. 474 ; State, use of Coughlin v. Baltimore, &c., R. R. Co., 25 Md. 84).
    
    II. A direction to find a verdict for one of the parties is proper where a contrary verdict would be set aside on the ground it was against evidence (Herring v. Hoppoch, 15 N. Y. 409 ; Same Case, 3 Duer, 20 ; Godin v. Bank of Commonwealth, 6 Id. 76). Where there is no conflicting evidence, or the weight of evidence in favor of one party is so decided that the court would set aside an adverse verdict as against evidence, it is the duty of the judge to direct the jury what verdict to render (People ex rel. Peck v. Board of Police, 14 Abb. Pr. 158; Goelet v. Ross, 15 Id. 251 ; Dickerson v. Wason, 48 Barb. 412).
   By the Court.—Sanford, J.

Not one of the legal propositions asserted in his charge, by the learned chief justice, as the basis of his action in directing a verdict for the defendants, was separately excepted to by the plaintiff's counsel on the trial; nor could tenable exception have been taken to any or either of such propositions. Indeed, it is not now contended that there was error in the charge, or in any part of it, except in the application of familiar and well-settled rules and principles to the facts and circumstances of this particular case.

It is claimed that there was conflicting evidence upon the two main questions in the case, viz. : first, whether the injuries which resulted in the death of the plaintiff’s intestate were occasioned by negligence on the part of the defendants; and secondly, whether the said intestate was himself free from negligence which contributed to such injuries. It is even claimed that there was a preponderance of testimony in favor of the plaintiff upon both these questions, and the plaintiff’s counsel has addressed to us an able and elaborate argument and brief (chiefly devoted to an analysis of the testimony) in derogation of the verdict, and the action of the court in directing it. The case is very voluminous, and there are discrepancies in the evidence, possibly even some contradictions, in regard to particular facts. I have examined and considered the whole with deliberation and care, and my examination has satisfied me that the decision was correct.

It is not every case in which there is evidence, which, if uncontradicted, would sustain a judgment, that must be submitted to a jury in case such evidence be contradicted.

I am of opinion that a judge is not justified in submitting a case to the arbitrament of a jury, where the evidence in favor of either party is so preponderating as to require that an adverse verdict, if rendered, should be set aside ; and I deem it especially important that this rule should be observed in actions for negligence against corporations; carriers off passengers. For, as was wisely and truly remarked by Williams, J., in Toomey v. London, B. & S. Railway Co. (3 C. B. N. 8. 146), “every person who has had any experience in courts of justice, knows very well that a case of this sort against a railway company, could only be submitted to a jury with one result.” The rule has the sanction and approval of this court, and of the court of appeals (Ryan v. Thompson, 38 N. Y. Sup’r Ct. 133), and its more frequent adoption would substantially promote the cause of justice, and tend to suppress, in some degree, the alarming increase in the number of purely speculative litigations which the misplaced sympathy of jurors, and an unwholesome dread of responsibility on the part of judges, has done much to foster and encdurage.

The judgment should be affirmed, with costs.

Speir, J., concurred.  