
    Frederick W. Howard, Respondent, v. Forty-second Street, Manhattanville and St. Nicholas Avenue Railway Company, Appellant.
    First Department,
    May 8, 1908.
    Railroad — negligence—injury in attempt to board moving surface car —weight of evidence.
    Action to recover for personal injuries. The plaintiff boarded a surface car before it had stopped at a street crossing. He was thrown from his position on the step by a sudden movement of the car, and instead of releasing his hold followed behind the car in another attempt to board it, and fell into an excavation between the tracks, with the existence of which he was familiar. The defendant gave evidence that the gates of the car were shut, that it was not lighted, and was not intended for passengers. On all the evidence,
    
      Held, that a finding that the car was carrying passengers, or that there was any invitation for the plaintiff to board the same was against the weight of the evidence;
    That assuming that the plaintiff was justified in believing that the car slowed down to receive him, he was guilty of contributory negligence in continuing to follow it with knowledge that the street was excavated.
    Scott, J., dissented.
    Appeal by the defendant, the Forty-second Street, IVIanhattanville and St. Nicholas Avenue Eailway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 17th day of June, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 21st day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      James C. Cropsey, for the respondent.
   Ingraham, J.:

The action is for personal injuries caused to the plaintiff While attempting to board a moving car at the corner of One Hundred and Second street and Broadway on the 26th of December, 1906, about eleven o’clock in the evening. At the time of the accident the subway was being constructed at this point and the space between the tracks had been excavated. The plaintiff, intending to go uptown on the night in question, stopped at the southeast corner of Broadway and One Hundred and Second street and signaled to an approaching car to stop; the car slowed down so that as the rear of the car approached him it was moving, but very slowly; the plaintiff took hold of the stanchion on the body of the car with his right hand and the stanchion on the'dashboard with his left and put his left foot on the step when at that moment the car gave a jerk forward and broke the grip his right hand had on- the rail; that this swung him off the step but he still held on with his left hand ; that he was then swung around the rear of the car and ran after the car for some distance when he lost liis grip and fell down, and that is all he remembered.

On cross-examination he said he was accompanied by a friend named Crawford; that as the car started he held on to the stanchion on the rear dashboard and ran along with the car for a few steps probably ten to twelve feet (subsequently saying it was about twenty feet), thinking that he could get back on the car. If he had let go when the car started it is quite clear that he would have sustained no injuiy, but it was because of his retaining his hold upon the car after it started and running along with it that he fell into the excavation. He testified further that he did not know whether there were any passengers in the car ; that the car was light and the shades of the car appeared to be up, but he could not swear that they were; that he did not see the gates closed and did not see that they were open; that he did not see the gates of the car in front of him as he held on to the car. When asked whether he would swear that the gates were open he replied that he thought they were, but the nearest he could come to it was that he thought the gates were open. Plaintiff stated that when he first signaled the motorman to stop he noticed the motorman put on the brake to stop the car; but as the car was approaching a crossing and the motorman was bound to keep it under control, it did not follow that the slowing down of the car was intended as an invitation to the plaintiff to board it. The plaintiff knew of the excavation and was familiar with the situation, as he was in the habit of traveling up and down the line daily, and testified that he thought that by running after the car he might get on it; that the car might stop; that he gave no signal to the conductor, as he did not see the conductor at all,. Crawford, the plaintiff’s companion, testified that he left the plaintiff on the sidewalk and started to walk south on the east side of Broadway; that as ■ he was walking down he saw the north-bound car approaching; that the car was then slowing down about thirty to fifty feet from the corner ; that he then heard a shout, turned around and saw the plaintiff’s feet disappearing into the excavation; that he did not pay any particular attention to the car and did not notice whether the blinds on the sides were up or down; that after the accident he noticed that a gate was open, but did not pay any particular attention to.it before ; that he did not notice whether there were any passengers in the car before the accident, but that there were no passengers in the car after the accident; that the car stopped just above One Hundred and Second street.

On behalf of the defendant the motorman, conductor, two persons who were at the corner of the street, and a policeman who saw the car just before the accident, testified that this was what was called a “ dark ” car carrying no passengers and with the gates shut.

The court charged the jury that the first question for them to determine was whether this was a closed car not intended for the reception of passengers, or a car fully lighted with the shades up and the gates open, inviting passengers to enter. A consideration of this testimony establishes that a finding of the jury that this car was carrying passengers was clearly against the weight of evidence. It would seem that the plaintiff was not in a condition to be very accurate as to what he saw when he attempted to board the car; he would not swear that the gates were open or that there were no passengers in the car, and his companion expressly disclaims any knowledge of the car before the accident. On the other hand, there is uncontradicted evidence that the ear was running as a dark car, was not carrying passengers, and that no fact existed which justified the plaintiff in assuming that the car was about to stop. It is hardly possible that a car carrying passengers at this hour of the night on an uptown trip would have been empty. Plaintiff was in the habit of using these cars constantly, was perfectly familiar with the location, and knew the regulations in regard to the cars stopping to receive passengers only after crossing the streets. Any finding of the jury from this evidence that there was any invitation to the plaintiff to board the car or that he was justified in assuming that the car slowed down to enable him to board it, was without 'evidence to support it. But assuming that he supposed the car had slowed down to receive liiin it seems to me that he was clearly guilty of contributory negligence. Knowing that the street had been excavated for the construction of the subway he was chargeable with knowledge that if he ran along with the car he was liable to fall into the excavation. He says that as the car approached and had reduced its speed he attempted to board it without waiting for it to stop; that its speed was then accelerated so that he lost the hold of his right hand on the rail but still maintained his hold with the left hand; that he ran after the car to get on board, and continued following it for from twelve to twenty feet. Under any circumstances with the speed of the car suddenly accelerated this would be a dangerous operation. When the car suddenly shot ahead he must have then appreciated that it was not intended that he should board it on the south side of the street and that the car, therefore, had not slowed down for the purpose of enabling him to get on board. If he had simply released his hold at that time he would have been in no accident. It was not caused by the sudden starting of the car but by his running after the car with the expectation of boarding it, which caused him to be precipitated into the excavation. His being .dragged along by the car was not an involuntary act which was the natural consequence of the sudden start of the car, but as the plaintiff testified again and again it was the result of his determination to hoard the car whether it stopped or not, and knowing as he did of the condition of the street I think it appears that the accident was not the result of any negligence of the defendant but solely the act of the plaintiff in exposing himself to the accident that resulted and for which he cannot hold the defendant liable.

The verdict so far as it finds that the plaintiff was ever invited to board this car; that the defendant was guilty of negligence that caused the injury, or that the plaintiff was free from contributory negligence is without evidence to support it.

It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Laughlin, Clarke and Houghton, JJ., concurred; Scott, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  