
    James Prenderville, Jr., an Infant, by James Prenderville, His Guardian ad Litem, Respondent, v. Coney Island and Brooklyn Railroad Company, Appellant.
    Second Department,
    March 19, 1909.
    Railroad — negligence — injury to boy attempting to take free ride — facts not justifying recovery.
    Where a boy, Vith the intention of taking a free ride, jumped upon a running board which was not in use but folded up against the side of an open trolley • car, and becoming frightened on seeing the conductor approaching with outstretched arms fell off and was injured, there can bo no recovery in the absence of proof warranting a finding that the act of the conductor was improper, unnecessarily dangerous, the proximate cause of the injury and done for the purpose of removing the plaintiff from the car.
    Hirschbero, P. J., and Woodward, J., dissented.
    Appeal by the defendant, the Coney Island and Brooklyh Bail-road Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of June, 1908, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 13th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      I. R. Oeland[Owen N. Brown with him on the brief], for the appellant.
    
      S. D. Morris, for the respondent.
   Rich, J.:

The plaintiff, a child nine years of age at the time of the accident, and two other, boys, were walking along the line of defendant’s tracks between Brooklyn and Coney Island, when ah open car on defendant’s road overtook them and stopped to take on a passenger. The running board on the left-hand side was not in use, and was folded up against the side of the car. Before the car started, plaintiff, with the intention of taking a free ride, climbed upon this running board, and standing on its edge held on to a bar or rail that ran across the side of the car. The car started, and had passed over a distance testified to by different witnesses as being from fifty to two hundred feet, when the plaintiff fell off and received the injuries for which he has recovered. His version of the accident is that the conductor came towards him very fast, between the seats of the car,' with both hands extended towards him, in consequence of which he became frightened and fell. He testifies that he first saw the conductor when he was coming towards him three or four feet away, when he fell off; that the conductor did not say anything to him, did not have anything in his hands to throw at him, did not speak or make any remarks to him, and did nothing except come towards him with his hands extended in front of him at a little above right angles from his body. In this version he is corroborated to a greater or lesser extent by his two companions, although one of them testifies twice that he did not see the conductor before the plaintiff fell off. This was the testimony as to the manner in which the accident occurred, given in behalf of the plaintiff. Counsel for the defendant moved to dismiss the complaint upon the grounds that there was no negligence shown on the part of the defendant, and no act of the conductor which would justify plaintiff in assuming that he was about to be assaulted, or which justified him in attempting to jump from the car. The motion was denied and an exception taken.

I think this presents reversible error. The plaintiff was a trespasser, and his right of recovery rests entirely upon the question of whether or not the evidence established facts from which a jury would be warranted in finding that the act of the conductor was improper, unnecessarily dangerous, the proximate cause of the injury, and done for the purpose of removing the plaintiff from the car. (Ansteth v. Buffalo Railway Co., 145 N. Y. 210, 214.) In the case of Rounds v. D., L. & W. R. R. Co. (64 N. Y. 129), cited by the respondent, the plaintiff, who was ordered off the car, protested because of the close proximity of wood piled along the track, so near to the car as to render an attempt to get off dangerous, and was.thereupon kicked off by a baggageman. In the case of Clark v. N. Y., L. E. & W. R. R. Co. (40 Hun, 605) the plaintiff was assaulted by having water thrown in his face, in an attempt to remove him from the platform of a caboose on which he was riding, and in the case of Ansteth v. Buffalo Railway Co. (supra) the conductor raised his.hand towards plaintiff and halloed at him. In the case at bar, there was no assault, no order to get off the car; the conductor had not spoken to the plaintiff, and, so far as the evidence disclosed, had not by act or word indicated that he knew the plaintiff was on the car, or that he had any intention of putting him off. This was insufficient to justify a belief on the part of the plaintiff that he was about to be injured, and he does not testify that he had such belief. He simply says he “ got frightened and fell off.” Plaintiff’s conduct was voluntary and intentional. He released his hold upon the bar for the purpose and with the intention of jumping off the car, and his foot tripped or slipped on the running board in the effort. It was a conscious and voluntary act, and there was no evidence which would call for the submission to the jury of the question a's' to whether there was such a willful and wanton disregard of human life and personal safety on the part of the conductor as .to make defendant liable to the plaintiff, who was a trespasser, knowing and appreciating the danger he was subjecting himself to when he boarded the car, and a nonsuit ought to have been granted.

The judgment and order must be reversed and a new trial granted, costs to, abide the event.

Jenks and Miller, JJ., concurred; ITirsohberg, P. J., and Woodward', J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  