
    John P. Craighead, Resp’t, v. The Brooklyn City Railroad Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 28, 1890.)
    
    1. Neslig-bítcb—Steeet railboads.
    Plaintiff, after speaking with a conductor of an open street car, stepped down from the rear platform to the outside step of the car, and while moving along the step to the front part was struck on the head by a closed car coming along on the down track and knocked off. There was a space of seventeen inches between the outside step of the open car and the body of the closed car For twenty years thousands of passengers had stood on the steps of open cars and no one had been injured by closed cars passing, field, that defendant was not guilty of negligence because it did not have more space between its tracks.
    2. Saitb.
    There was no negligence on the part of the conductor in failing to prevent the plaintiff from going on the step or in failing to warn him of any possible danger which might arise therefrom.
    Appeal from a judgment of the city court of Brooklyn, general term, affirming judgment entered on a verdict of a jury at a trial term in favor of plaintiff.
    
      Samuel B. Morris, for app’lt; William J. Lynch, for resp’t.
    
      
       Reversing 25 N. Y. State Rep., 941.
    
   Peckham, J.

Upon the undisputed evidence we are of the opinion that the plaintiff failed to make out a case of negligence against the defendant.

The evidence of the sister of the plaintiff is as favorable as that of any witness called on his part. She says when the plaintiff finished speaking with the conductor of the opon car on which they all were, he stepped down from the rear platform to the out.side step of the car, which runs its entire length, and she saw .the other car coming along on the down track and it struck the plaintiff while he was still on the step, turned him around and knocked him off the car. The witness was looking directly at the plaintiff at this time, and he was looking at her and was moving along the step from the rear towards the front part of the •car where she was sitting facing the rear. She saw the car strike his head, and she stated positively that he did not slip off the side of the car and fall against the other car. This was when the plaintiff was standing either at the first or second stanchion from the rear of the car.

It appeared that -the smallest space between the tracks at or near this spot was such that these cars had a space between the outside step of the open car and the body of the closed car of at least seventeen inches. The place where the accident happened was a°crowded street, and horse cars were continually there passing each other.

The company had some open cars that were seven inches wider than the one upon which the plaintiff was riding. Open cars had been in use daily during the summer months for twenty years. All the closed cars were of a uniform width. Thousands of persons, during this long period, had been seen riding at or near this spot on the outside steps of the open cars at times when they met cars coming from the opposite direction and the cars had passed each other, and no one had ever been hurt nor had any accident ever before happened there or at any other portion of the road from any such cause. The space between the tracks was about uniform along the length of the defendant’s road, sometimes a few inches more or less.

At the place where this accident occurred, and about the time in the day of its occurrence, cars were passing each other certainly every half minute.

Policemen and employes of the road frequently stood at this place, or near it, between the rails of the up and down tracks, when cars passed each other, and no one had ever been hurt. This was an every-day occurrence. The inspector of the defendant, who had been in its employment for thirty-four years, said that open cars had been in use on the road for twenty years, and he had seen at this place, thousands of times, people standing on the step of an open car and pass a closed car at the same time on the other track, and he had never heard of an accident before this one.

Upon these facts we cannot see how the defendant can be convicted of negligence because it did not have more space between its tracks. For twenty years such space had been sufficient, although precisely the same opportunities for accidents had arisen many times daily during that period and yet not one had •occurred. Clearly the accident was one not to be apprehended, and a failure on the part of the defendant to take such measures as would make its happening under, any circumstances a physical impossibility cannot be said to be an omission of duty. The accident was not to be apprehended because thousands of passengers on the steps of an open car had uniformly, and for twenty years, passed in safety the car going in an opposite direction. The body of plaintiff must, with reference to the car, have been at a most extraordinary and unusual angle at the time of- the accident in order that it should have occurred at all. The defendant was not bound to so construct its tracks that it would be impossible for a passenger to reach another car while he was standing on the outside of an open one.

There was no negligence on the part of the conductor in failing to prevent the plaintiff from going on the step or in failing to-warn him of any possible danger which might arise therefrom.

We think the judgments of the courts below were erroneous and they should be reversed and a new trial ordered, with costs to abide the event.

All concur.  