
    Higgins, Plaintiff and Appellant, v. N. Y. & Harlem R. R. Co.
    "When a collision occurs between a train of cars, in which the plaintiff was at the time a passenger, and another train, and the plaintiff was at the time standing on the platform of a car, and was injured, he is not entitled to an instruction to the jury, “ that, if the conductor of the train, on which he was, knew of his • being on the platform, and did not object, the consent of the company may be presumed, and the company would be liable,” unless, upon the evidence, it is free from doubt, that he was injured by the negligence of such company, without any fault on his part; and if the notices, authorized by § 46 of chap. 140 of the Laws of 1850, were posted up at the time inside of the passenger cars then on the train, then also, that the company at the time did not furnish room, inside of its passenger cars, sufficient for the proper accommodation of the passengers.
    
      If such notices were duly posted at the time, and sufficient room was furnished, inside of the cars, for the proper accommodation of the passengers, the mere fact, that the conductor did not object to the plaintiff’s standing on the platform, would not justify the presumption, that the company assented to waive a protection given to them by statute, which these notices expressly declared they should claim, and on which, they informed all passengers, the company prould insist.
    (Before Bosworth and Hoffman, J. J.)
    Heard, November 9th, and
    decided, November 28th, 1857.
    This action comes before the Court at General Term, on an appeal by the plaintiff from a judgment in favor of the defendants. It was brought to recover damages sustained by the plaintiff, while a passenger on the cars of the defendants, from a collision between the train on which he was riding and a freight train belonging to the N. Y. & New Haven Railroad Company. It was tried in June, 1856, before Judge Woodruff and a jury.
    The collision was caused by the cars of the defendants running against a freight train of the New Haven Company, which was due -in New York City many hours before the collision, which occurred near 58th street, while both trains were going into, or towards the City of New York. It was admitted, on the trial, that the plaintiff, at the time of the accident, was standing on the platform of the car on which he was riding. Evidence was given, on the part of the plaintiff with a view to show, that the collision was caused by the negligence of the defendants; and by the latter, to show, that it was caused by the negligence of the N. Y. & New Haven Railroad Company, without negligence on their own part; also, that notices were posted up, inside of the passenger cars of the train in which the plaintiff was, conforming to the statute on that subject, and that there was sufficient sitting accommodations inside of the cars for all of the passengers.
    When the evidence was closed, the counsel of both parties addressed the jury. The counsel for the plaintiff requested the Judge to charge, “ That, if the conductor of the Harlem passenger train knew of the plaintiff’s being on the platform, and did not object, the consent of the company may be presumed, and the company would be liable.”
    “ The Court refused to charge, on the subject, otherwise than is hereinafter stated, and plaintiff’s counsel then and there excepted.”
    
      The portion of the charge relating to the subject-matter of such request, was as follows, viz.:—“ The statute of 1850, relative to the standing on platforms, is relied on by the defendants; by this you have to be governed unqualifiedly. (His Honor then read the statute of 1850.) It is reasonable and just, and if this applies to the plaintiff, and if the defendants have shown themselves within its provision—that id, if the defendants had complied with all the conditions of the statute, and the plaintiff was on the platform unnecessarily, and in violation of the notices put up in the cars—he cannot recover. The plaintiff, however, was not obliged-to go over platforms, etc., when the cars are in motion and incur danger, to find a seat. If he wished to find a seat, the conductor’s duty is to show him one. As to proof of the notices required by the statute which I have read to you, it is the duty of defendants to satisfy you that the required notices were up, inside the cars, that morning. If proved to you, that such notices were habitually kept up by the defendants inside, at each end, and alongside of their passenger-cars running over their road in the train in which the plaintiff was, and were regularly there, so that 'passengers, passing daily over the road, saw them, and that they had been so regularly for a series of years, and down to the present time, this would raise the presumption, that they were up that morning, if nothing to the contrary appeared; also, as to there being room inside the cars sufficient for the passengers, it is proper to say, that the statute means that the company shall furnish room inside its cars, sufficient for the proper accommodation of the passengers, and this without subjecting the passenger to the necessity of exposing himself to danger in finding such accommodation inside; and the company ought to allow the passengers, time and opportunity to find seats, if they are provided, without hazard of danger in the search, otherwise they cannot be said to furnish accommodation inside the cars, within the meaning of the statute.”
    The jury found a verdict for the defendants. The plaintiff moved for a new trial, on the ground that the verdict was against evidence. From the order denying that motion, and from the judgment entered on the verdict, the present appeal is "taken.
    
      George G. Bellows, for the plaintiff and appellant, insisted, that the plaintiff, being on the platform of a car in the train of defendants, even admitting that notices in pursuance of an Act of 1850 were posted up in cars composing that train, and that there were vacant seats, does not bar a recovery, as plaintiff was there by the assent of the conductor having the train in charge; and no act on the part of the plaintiff tended to produce the injury he sustained, or did in any way contribute thereto; and the plaintiff would be entitled to recover, if-the injury resulted from the want of that care and caution which defendants were bound to exercise. The Justice, before whom the cause was tried, should have charged as requested. (Carroll v. N. H. B. B. Co., 1 Duer’s Reports, 571.)
    There is no testimony, on the part of the defendants, to show that the notices, required by the Act of 1850, were posted up in the train of defendants on the morning of the accident; and under the construction of the statute, as claimed by defendants’ counsel, defendants were bound to show, that the statute had been strictly complied with, in every respect, at the time of the collision, and that there was a regulation of the company, to the effect, that notices should be posted up prohibiting persons from standing on the platforms. (See Session Laws of 1850, p. 234, § 46; Sprague v. Birdsall, 2 Cowen, 419; Batliburn v. Acker, 18 Barb. S. O. R. 234.)
    
      Charles W. Sandford, for respondents.
   By the Court. Bosworth, J.—

This action comes before the Court, on an appeal by the plaintiff from the judgment, and from an order denying a motion, made on a case, for a new trial.

No exception was taken to the admission or rejection of evidence, or to the charge as made. The plaintiff requested a particular instruction to be given, and the Judge refused to charge otherwise, on the subject, than he did charge, and the plaintiff excepted. The Judge was requested to charge " That if the Conductor of the Harlem train knew of the plaintiff’s being on the platform, and did not object, the consent of the company may be presumed, and the company would be liable.”

The plaintiff was not entitled to this absolute instruction, unless the evidence established, beyond controversy, that he was injured by the negligence of the defendants, without any fault on his part contributing to the injury; and also, if the notices authorized by §.46 of Chap 140 of the Laws of 1850 (p. 234) were posted up at the time, inside of the passenger cars then in the train, that the company at the time did not furnish room inside of its passenger cars sufficient for the proper accommodation of the passengers.

If such notices, being part of the printed regulations of the company, were duly posted at the time, and there was at the time sufficient room inside of the passenger cars for the proper accommodation o'f the passengers, the mere fact, that the conductor did not object to the plaintiff standing on the platform, would not justify the presumption that the company assented to waive a protection given to them by the statute, which, these notices expressly declared they should claim, and on which they informed all passengers the company would insist.

Whether the notices were duly posted at the time was submitted to the jury, and there was sufficient evidence of the fact to make the submission of that question proper.

The question was also submitted whether, at the time, sufficient room was furnished) inside of the cars, for the proper accommodation of the passengers. On that point, the jury were instructed that the company could not be said to have furnished sufficient accommodation inside the cars, within the meaning of the statute, unless they allowed the passengers time and opportunity to find seats, without hazard of danger, in the search, by passing from platform to platform while the cars were in motion.

We think this was a submission of this question, in a manner of which the plaintiff cannot justly complain. The plaintiff being a commuter, and a daily passenger in this train, we cannot say the jury were unauthorized in finding, that the plaintiff knew that, at the place where he entered the cars, the only vacant seats would’be found in the rear car or cars, and that other passengers, and the plaintiff, as well as others, habitually crowded upon the forward cars, although they contained no unoccupied seats, for the mere purpose of gaining a little time, by being in the cars to be first started, after horse power was substituted for that of steam.

We do not feel at liberty to say, that a verdict, finding that sufficient room was furnished at the time inside of the cars for the proper accommodation of the passengers, is so clearly against evidence as to justify us in granting a new trial for that cause.

We think the evidence given was such, as made it the duty of the Judge to submit the question, whether the injury was caused without any negligence of the defendants, and by the negligence of the New Haven Company. The rules, stated to the jury as their guide with reference to the effect of the facts they might find, were not excepted to, and were not prejudicial to the plaintiff.

No objection was made to submitting to the jury either of the' questions of fact which they were left to determine, or to the charge, in any of its details, except such as may be implied by the specific instruction requested, and the exception to the refusal of the Judge to charge in the terms required.

We do not feel at liberty to interfere with the verdict, on the ground that it is not warranted by the evidence. The exception taken being untenable, the judgment and order appealed from' must be affirmed with costs. 
      
       See Colegrove v. Harlem and Hew Haven R, R. Cos., 6 Duer, 382. That case, and this are brought to recover damages sustained by the same collision.
     