
    Herman Reschke, Respondent, v. Syracuse, Lake Shore and Northern Railroad Company, Appellant.
    Fourth Department,
    January 8, 1913.
    Street railways — negligence — person about to board car forced from, platform by crowd — evidence — contributory negligence — failure to furnish men and contrivances to control crowd — precautions taken by other railroads.
    Plaintiff, one of a crowd of over 7,000 persons, desiring to hoard a car, took a position upon defendant’s platform maintained at a pleasure resort about twenty or twenty-five feet from the right of way posts and some
    ' three or four feet from the rails. As a car approached very slowly a crowd of about 3,500 surged forward to secure seats and plaintiff was. forced between the car and a trailer and injured. In an action to recover for the injuries sustained it appeared that it was not unusual for the daily attendance at the resort to reach from 35,000 to 30,000 persons, and that on the night in question the defendant furnished only six men to care for the crowd. Evidence examined, and held, that plaintiff’s freedom from contributory negligence was established;
    That the court erred in withdrawing from the jury the question of the defendant’s negligence in failing to furnish sufficient men to handle, the, crowd;
    
      That the defendant was negligent in failing to erect barriers, turnstiles, etc., to control the crowd.
    Evidence by the plaintiff as to precautions taken at other points and upon other roads was properly admitted where its effect and purposes were correctly stated by the trial court.
    McLexxax, P. J., dissented.
    Appeal by the defendant, the Syracuse, Lake Shore and Northern Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of March, 1912, upon the verdict of a jury for $6,300, and also from an order entered in said clerk’s office on the 19th day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      William Nottingham, for the appellant.
    
      W. J. McClusky, for the respondent.
   Lambert, J.:

The appellant operates a street surface electric railroad between the cities of Syracuse and Oswego and furnishes service to various summer and pleasure resorts along Onondaga lake, including one known as Long Branch, at the north end of the lake. Long Branch is about seven miles from Syracuse. The railroad does not own the resort, but maintains a special service to it and has a station located at the entrance to the grounds. This station, which is merely a shelter or waiting room, is located upon a triangular piece of ground 220 feet long, with a base of 110 feet, lying between the main line of the defendant’s road and the loop which furnishes service to this resort. This piece of land is level, open and unfenced, except that extending on to the north from the base of this triangular piece of land the right of way of the appellant along the loop was fenced with pickets or posts, which prevented access thereto except at the station. The station stands about 26 feet from the rail at its nearest point.

During the summer season large crowds of people attend this pleasure resort, and the facilities afforded for their transportation to and from the city are all furnished by the appellant. On July 31, 1911, the Assumption Church of Syracuse gave a church picnic on these grounds. Through arrangement between the church and the appellant tickets affording transportation over appellant’s line were sold by the church and settlement thereafter made between the church and the railroad. It is conceded that Y,Y32 tickets had been so sold upon this occasion. Plaintiff had been in attendance upon this picnic, and, desiring to return to the city, came to this station at about eleven o’clock p. M. to board one of defendant’s cars.

He says that there were then waiting at this station about 1,500 people, and that before the car arrived the crowd had increased to 2,000 or 2,500, all evidently awaiting transportation. Plaintiff assumed a position about twenty or twenty-five feet south from the right of way posts and some three or four feet from the rail. Almost immediately upon his arrival a motor car and a trailer passed, stopped for passengers and departed. Plaintiff did not board that car. Five or six minutes after another train, similarly made up, came along. It was moving very slowly. The motorman says, so slowly that he could have stopped it within a foot. As this train came opposite plaintiff the crowd surged forward to secure seats. In spite of his efforts, plaintiff was carried with the crowd and up against the motor car. As that car continued to move along, ' by the pressure of the crowd plaintiff was forced between the motor and the trailer, and the front truck of the trailer ran over one of his legs and onto the other. The car was stopped, and then to permit the extrication of the plaintiff, was backed off from him, again passing over his leg. These injuries necessitated the amputation of the one leg.

Plaintiff’s freedom from contributory negligence is well shown by the evidence. He came to this station, the place provided by the appellant, to secure the convenience offered by the appellant to the public, and all of his actions appear to have been those of the average person situated as he was. It is true that one witness, called by the defense, testified as to the occurrence of the accident far differently from the claim of plaintiff. According to that witness plaintiff received his injury while attempting to board the moving car. If this version was to be adopted, then there could be no recovery, but plaintiff’s version is borne out by two other witnesses, and the jury was well justified in adopting it as the true one.

Plaintiff sought to establish the negligence of defendant by reason of its lack of care in handling this crowd while loading the cars in such manner as to prevent such crowding and pushing. Such action by the crowd was reasonably to be expected. It appears that it was not unusual for the daily attendance at this resort to reach 25,000 to 30,000 persons, and some realization by appellant of the attendant dangers is shown by the fact that it did furnish a few men to assist in preventing such occurrences. The witness Marvin, called by the defendant, seems to have had general charge on the evening in question, and to have performed similar duties upon other occasions. He testified that he had frequently seen crowds rush for the cars, and that on the day of the accident, between five p. m. and the time of the accident, he had at least fifty times gone in front of the crowd and pushed it back from the car. That crowds under such circumstances will rush forward is also a matter of daily observation, and the helplessness of one caught in such a rush is well understood.

When the appellant assembled these people upon its property, for purposes of financial gain to itself, it assumed the responsibility of using all reasonable care to protect the individuals from injury from causes reasonably to be anticipated. Such a measure of duty upon the part of transportation companies and others handling large numbers of persons has been frequently recognized by the courts. (Dawson v. New York & Brooklyn Bridge, 31 App. Div. 537, and cases therein cited.) It knew or should have known that at that hour of the evening large numbers of these people would wish to enter its cars to return to the city and that the desire to secure passage would result in forceful effort to secure such entrance. It is no answer to say that the station grounds were sufficiently large to accommodate this crowd. The danger arose in the loading of the cars and appellant was bound to anticipate the expected movement of these people.

Plaintiff suggested two means to prevent the result here experienced, i. e., (1) more extensive policing; and (2) the erection of barriers which would permit access to the car of only a limited number of people at one time. It was shown upon the trial that on this occasion there were six men furnished by appellant to assist in controlling this crowd. The court then withdrew from the jury the right to find defendant guilty of negligence in not furnishing more men for that purpose. I cannot justify such a position. The force was insufficient upon this occasion at least, and it seems to me that the jury should have been permitted to say whether the defendant had discharged its full duty in that regard.

The jury was permitted, however, to predicate negligence upon the failure to erect barriers and it was found that reasonable care and prudence would suggest the erection of the same in view of the apparent dangers. I think this conclusion is well supported by the proof. Every day observation and the experiences of the appellant in the past clearly demonstrated such dangers to be present. The erection of barriers, turnstiles and similar contrivances are so common and such an effectual means for obviating such dangers that it seems to me that prudence and foresight would have suggested their use in this instance.

I see no error in the exception to the evidence of the precautions taken at other points and upon other roads. The weight and effect of such testimony and the purpose of its admission were very clearly and correctly stated by the trial justice. The judgment and order should be affirmed, with costs.

All concurred, except McLennan, P. J., who dissented upon the ground that the defendant was not shown guilty of negligence, especially in view of the charge of the court that sufficient police protection was furnished.

Judgment and order affirmed, with costs.  