
    Alexander Leroy, Plaintiff, v. The North German Lloyd Steamship Co., Defendant.
    (Supreme Court, New York Trial Term,
    February, 1896.)
    Negligence— Contributory.
    In an action for injuries to plaintiff's foot, caused by the fall thereon of folding doors intended to cover a stairway opening on a steamer in which he was a passenger, it appeared that the doors were thrown down by the action of the sea, and that plaintiff’s foot was, at the time, ■ projected under the rail, and into such opening. Held, that plaintiff was'guilty of contributory negligence in occupying that position, and could not recover.
    Motion by plaintiff for new trial after dismissal of his complaint. •
    N. A. Alexander and D. C. Calvin, for motion.
    Shipman, Larocque & Choate, opposed.
   McAdam, J.

In cases of negligence consisting of mere omissions of duty, where no affirmative fault, misfeasance or wrong is committed by or imputable to the defendant,-it is essential to sustain a recovery to establish that the defendant owed some clear, specific legal duty to the party injured, and that the breach thereof was the proximate cause of the injury. Gillis v. Railroad Co., 8 Am. Law Reg. (N. S.) 729. The injury of which the plaintiff complains was attributable to two causes: (1) The folding doors intended to cover the stairway opening were, by the action of the sea, thrown down; (2) the plaintiff by projecting his right foot under the rail and into the opening was struck on that foot by the doors as they descended. The defendant was not bound to anticipate that the plaintiff would place his foot in that unusual position, and was not required to guard against any such contingency. The injury was obviously occasioned by the indiscretion of the plaintiff, and from a cause respecting which the defendant owed him no duty. If the plaintiff had been using the stairway at the time and the doors had fallen upon him, a different question would have arisen. To occupy exposed positions which have not been intended or designed for, such occupation may be■ contributory negligence. Thus, voluntarily occupying a place on the front platform of a ear when there is room inside (Clark v. Railroad Co., 36 N. Y. 135; 90 Hun, 419), or putting one’s"elbow or arm out of a car window, without any qualifying circumstances impelling one to it, must be regarded as negligence in se; and when that is the state of the evidence it is the duty of the court to declare the act negligence in' law. Laing v. Colder, 8 Pa. St. 479; Todd v. Railroad Co., 3 Allen, 18; 7 id. 207; Pittsburgh, etc., Railroad Co. v. McClurg, 56 Pa. St. 294; Ohio, etc., Railroad Co. v. Schiebe, 44 Ill. 460; Railroad Co. v. Huffman, 27 Ind. ,288; Indianapolis, etc., Railroad Co. v. Rutherford, 29 id. 82; Telfer v. Railroad Co., 30 N. J. L. 190; Louisville, etc., Railroad Co. v. Sickings, 5 Bush, 5. The principle underlying all the decisions is that whenever the plaintiff’s case shows any want of ordinary care’on his part, contributing as a proximate cause to the injury for which he brings his action, his right to recover is thereby destroyed, and the burden of proving the absence of contributory negligence is on’him. Hale v. Smith, 78 N. Y. 480; Cordell v. Railroad Co., 75 id. 330; 90 Hun, 420. Even if the defendant were adjudged guilty of neglect, no injury could, have happened from it if the plaintiff had not directly contributed to produce the result; and the injuries resulting from mutual and concurring negligence are not actionable. Volenti non fit injwria. The claim for'alleged malpractice of the defendant’s physician was abandoned at the trial, and need not be considered. The nonsuit was properly granted, and the motion for a new trial must be denied.

Motion denied.  