
    Norman A. Tucker, Respondent, v. Buffalo Railway Company, Appellant.
    
      Negligence — the elbow of a passenger which extended three inches from an open car window, injured by a passing car — a question of fact is presented thereby.
    
    In an notion brought to recover damages for personal injuries sustained by a passenger on the defendant’s railroad, the elbow of whose arm, while resting upon the window sill of the car in which he was riding, was struck by a passing car, the question in dispute on the trial was whether the plaintiff’s elbow was wholly inside the car or extended not more than three inches outside of it. The court charged the jury, in effect, that the plaintiff, although he was riding with his elbow three inches outside the car, and although the cars themselves did not actually collide, might recover damages, where the passing car came within three inches of the car in which the plaintiff was riding, and left it to the jury to say whether the plaintiff was, under the circumstances, exercising the care of an ordinarily careful and prudent person, and refused to charge that riding with his elbow extending three inches outside the car would constitute contributory negligence as matter of law on the part of the plaintiff. If appeared that the day was warm, the window of-the car was open, and the plaintiff sat beside it with his elbow on the window sill, intently reading a paper.
    
      Hold, that the charge of the court correctly stated the law;
    That it was gross negligence for the defendant to run its cars so closely to each other as to cause in j ury to the plaintiff’s elbow when it extended only three inches from the car;
    That, under the circumstances, the jury was justified in finding that the plaintiff was free from contributory negligence.
    Adams, P. J., and Lau&hlin, J., dissented.
    Appeal by the defendant, the Buffalo Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 23d day of March, 1900, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 22d day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      G. M. Bushnell, for the appellant.
    
      Herman Henniy, for the respondent.
   Williams, J.:

The action was brought to recover damages for injuries to the plaintiff; alleged to have been caused by the negligence of the defendant.

The plaintiff was a passenger upon one of the defendant’s street cars. At the time of the accident he sat by one of the windows reading a newspaper, with his elbow resting upon the window sill. Whether his elbow was wholly inside the car or extended not more than three inches outside the car, was a question of fact in dispute on the trial. As this car passed another car going in an opposite direction on a switch, the two cars came close to each other. Whether they touched each other was a question of fact in dispute on the trial. The cars came so close to each other, at all events, that the plaintiff’s elbow was struck by the other passing car, and his arm fractured, causing the injuries for which a recovery was had.

There was evidence given on the trial sufficient to authorize the jury to find that the plaintiff’s elbow was wholly inside the car until the two cars came in collision, and that by such collision his elbow was jarred outside the car and was then struck by the passing car and his injuries were thus received. The court, however, charged the jury, in effect, that the plaintiff might recover, although he was riding with his elbow three inches outside the car, and although the cars themselves did not actually collide, but the passing car came within three inches of the car in which the plaintiff was riding, and thus struck his elbow and fractured his arm and caused his injuries. The court left it to the jury to say, even if the plaintiff was riding with his elbow three inches outside the window, whether he was, under the circumstances, exercising the care of an ordinarily careful and prudent person, and refused to charge the jury that riding with his elbow extending three inches outside the car would constitute contributory negligence, as a matter of law. The defendant claims that the court erred in so instructing the jury. This question was fully considered, and the earlier decisions in this and other States were discussed in Francis v. New York Steam Co. (114 N. Y. 380). In that case the defendant had opened a trench in Vesev street in New York city, alongside of the tracks of a street railroad ; upright planks had been set in the trench, within three or four inches of the side of passing street cars. The plaintiff was a passenger riding in one of the street cars, and as the car passed the trench his arm, which rested upon the window sill, was struck by the upright planks and fractured. There was conflict in the evidence as to whether the plaintiff’s arm extended outside the car. The court, among other things, charged that if the jury found the plaintiff sat with his arm out of the open window, and it was so brought in contact with the planks and fractured, it would not defeat his right to recover, unless they further found such conduct was negligent. The defendant requested the court to charge that such conduct constituted contributory negligence and prevented a recovery. Exceptions were taken.

The Court of Appeals (Second Division) affirmed the judgment for plaintiff, all the judges concurring. Follett, Oh. J., after reviewing the cases, concluded: “We are satisfied that a general rule, applicable to all cases, cannot be laid down, and that whether the question is one of law or fact must be determined by the circumstances of each case. Street railroads are operated under circumstances widely different; some in the crowded thoroughfares of large cities; others in streets little used in suburban districts and in villages. Conduct which would be declared negligent as a matter of law in one case, might not be so in another.”

It was said further on in the opinion : “ This is not an action by a passenger against his carrier, between whom contractual relations exist, and out of which reciprocal duties arise; but it is an action against a defendant, having a right to a limited use of the street, and required to exercise its right so as not to unnecessarily endanger travelers.”

We do not, however, regard this statement as indicating that the question would be in any way different in an action against a railroad company by a passenger. All the cases reviewed in the opinion ■were against railroad companies by passengers.

In Sias v. Rochester R. Co. (92 Hun, 140) the plaintiff’s intesstate was a passenger on one of the defendant’s cars. He went on the platform and leaned out beyond the side of the car, and was struck by a tree near which the car passed. The presiding justice of the fifth department wrote an opinion reviewing many cases, and among them Francis v. New York Steam Co. (supra), and arrived at the conclusion that the plaintiff’s intestate was guilty of contributory negligence, and that a nonsuit was properly granted by the trial court. The opinion closed with the statement: However, my associates are of the opinion that the questions as to negligence and' contributory negligence should have been submitted to the jury. Therefore, a reversal must be ordered.” The other justices concurred in the opinion by the presiding justice. This case was retried and a verdict rendered for the plaintiff, and then came before the Appellate Division, fourth department (18 App. Div. 506), and an opinion was written by Mr. Justice Adams, in which the conclusion was arrived at that the plaintiff’s intestate was guilty of contributory negligence, and that as to that issue there was no question for the jury. In this opinion the presiding justice and one associate justice concurred, while two associate justices dissented on the ground that the question of contributory negligence was one of fact and not of law. The judgment was, therefore, reversed. On appeal to the Court of Appeals the appeal was dismissed on the ground that it did not affirmatively appear that the Appellate Division had examined the facts. (159 N. Y. 567.)

It would seem that the two branches of the Supreme Court, reviewing that case, placed their decisions not so much on the mere fact that the plaintiff’s intestate leaned out beyond the side of the car as upon the circumstances under which he did so.

Our conclusion is that the rule laid down by the Court of Appeals in the case of Francis v. New York Steam Co. (supra), should be followed, and that the only question of law involved in this case is whether, under the circumstances, there was evidence from which the jury were justified in finding that the plaintiff was exercising reasonable care at the time of the accident, although his elbow was three inches outside the car.

In this view of the case the charge of the court was right. There were no peculiar circumstances showing want of care by plaintiff aside from the mere fact that his elbow may have extended a little beyond the side of the car. It was a warm day, the car window was open, the plaintiff sat heside it with his elbow resting on the window sill, he was intent in reading his paper, he had no reason to suppose the cars would be run so closely to each other as they were, it was gross negligence in the defendant to so run its cars, and under all the circumstances we cannot say the jury wras not justified in finding the plaintiff free from contributory negligence.

There was no reversible error in the admission of evidence with reference to damages, or the charge of the court with reference thereto.

The judgment and order appealed from should be affirmed, with costs.

McLennan and Spring, JJ., concurred; Adams, P. J., and Laughlin, J., dissented.

Judgment and order affirmed, with costs.  