
    Murphy v. Ninth Avenue Railroad Co.
    (New York Superior Court—General Term.,
    December, 1893.)
    Plaintiff entered one of defendant's open oars on the easterly side, and, with the columns of the elevated railroad in full sight, crossed to the westerly side and endeavored to pass forward on the step on that side, when he was injured by his shoulder coming in contact with one of the columns, which was fourteen inches from the step. There was evidence that a vacant seat could have been reached by him without crossing the car. Held, that the defendant, was not negligent in continuing to run its cars on its own tracks after the erection of the columns, especially in view of the fact that it made its open cars narrower than on other roads ; that the injury was either the result of an accident or, if due to any negligence, it was due more to plaintiff’s own negligence than that of the defendant, and that a refusal to dismiss the complaint or to direct a verdict in defendant’s favor was error.
    Appeal by defendant from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.
    Lamb, Osborne & Petty (Gilbert D. Lamb, of counsel), for plaintiff (respondent).
    
      John M. Scribner, for defendant (appellant).
   Freedman, J.

The action was brought for the recovery of damages for personal injuries sustained by the plaintiff, while a passenger on one of defendant’s cars, through the alleged negligence of the defendant. The plaintiff, at the time in question, was an active man, in full possession of all his faculties, and entirely familiar with defendant’s railroad and its operation and with the location of the structures of the elevated railroad in Ninth avenue at and near the point where-he sustained the injuries. He boarded one of defendant’s cars going south from the easterly side while the car was in motion. It was a car open at the sides, with seats running transversely, such as are in common use in this city during the summer months. Having boarded the car on the easterly side the plaintiff crossed over to its westerly side, either in front of the rear seat or on the rear platform, and with the columns or pillars of the elevated railroad structure, with which he had long been familiar, in full sight on the westerly side of the-car. As the plaintiff was moving from the rear towards the front of the car on the step or stanchion which ran along the-westerly side of the car, he collided with an elevated railroad column and was thereby knocked off the car and injured. It was claimed that the column in question was column No. 562, and it was proved at the trial, by a competent surveyor called by the defendant, that the distance between the stanchion of such a car and the nearest point of the straight part of the-column is fourteen and one-half inches at column No. 561; fourteen and five-eighths inches at column No. 562; and sixteen and one-half niches at column No. 563. The plaintiff testified that the distance was from twelve" to fifteen inches, and that the defendant should have the benefit of fifteen inches. Consequently, there was no material conflict as to the actual distance. It, therefore, appeared that the proximity of the column to the stanchion of the car being as stated, the plaintiff, although the columns were in full sight and their location was entirely familiar to him, left the easterly side of the car, where there were no columns to interfere with his movements, and, with his eyes open and in broad daylight, walked along the westerly step of the car while the car continued in motion, until his shoulder struck one of the columns, and that to accomplish this his shoulder must have projected in a westerly direction at least fourteen and one-half inches beyond the westerly line of the step. Eor this no necessity Avas shoAvn. The preponderance of the ■evidence Avas that vacant seats could have been reached by the plaintiff Avithout crossing to the Avesterly side of the car and then proceeding along the westerly step; but even if it be assumed that the plaintiff was excusable in so proceeding in order to reach a particular seat which lie coveted while the car was in motion, he could and should have done so without coming into contact with the column in question.

The defendant’s railroad was constructed and in use many years before the elevated structure was erected, and consequently it was not negligence on the part of the defendant to continue to run its cars on its own tracks after the erection of the elevated railroad columns. Moreover, it was shown without contradiction that, for the express purpose of preventing injury to passengers by collision with the elevated railroad columns, the summer or open cars of the defendant had been ■constructed six inches narrower than the open cars in use on the Eighth avenue road, and that many thousand passengers had been carried on the open cars of the defendant passing the same elevated railroad columns on every trip withopt accident or injury to a single passenger.

The facts being as stated, and no claim having been made that the plaintiff was thrown off his balance by a sudden jar ■or jolt of the car, the decision of the Court of Appeals in Moylan v. Second Ave, R. R. Co., 128 N. Y. 583, and Craighead v. Brooklyn City R. R. Co., 123 id. 391, are directly ■applicable, and under these decisions it must be held that the injury to the plaintiff was either the result of an accident, or that, if it was due to any negligence, it was due more to his own negligence than to that of the defendant.

The conclusion is, therefore, unavoidable that the defendant was entitled, at the close of the whole case, either to have the -complaint dismissed, or to have a verdict in its favor, and that the refusal of the trial judge to do either constituted error.

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

McAdam and Gildersleeve, JJ., concur.

Judgment reversed and new trial ordered, with costs to ■appellant to abide event.  