
    KLEFFMANN v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Division, First Department.
    December 7, 1906.)
    Cabbiebs—Personal Injuries—Contributory Negligence.
    Where plaintiff boarded a horse car and stood on the front platform while the car was being driven rapidly and was bouncing up and down In such a manner that he realized that it was a dangerous position, but made no effort to go inside, where there was plenty of room, he was guilty of contributory negligence, and could not recover for injuries.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1376, 1378.]
    Patterson, J., dissenting.
    Appeal from Trial Term, New York County.
    Action by August Kleffmann against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.
    Argued before PATTERSON, INGRAHAM, CLARKE, LAUGHLIN, and SCOTT, JJ.
    Charles F. Brown, for appellant.
    J. Brownson Ker, for respondent.
   SCOTT, J.

When this case was before this court upon a former ap-

peal (104 App. Div. 416, 93 N. Y. Supp. 741), while the judgment was reversed for an erroneous refusal to charge, much doubt was expressed whether the plaintiff had successfully sustained the burden of showing his'own freedom from negligence. His evidence in the present record is even more unsatisfactory upon that point, and the evidence as to defendant’s negligence is far from convincing. The plaintiff boarded a horse car and stood upon the front platform smoking a cigar. He says that the car was driven rapidly and was bouncing up and down in such a manner that he realized that it was dangerous to remain where -he was, yet he made no effort to go inside, where there was plenty of room. No reason is shown why he could not have entered the car if he had been so minded, and the fact that he recognized and appreciated the danger of his position and made no effort to put himself in a place of safety convicts him of imprudence, since the accident from which he suffered could not have happened if he had not persisted in a position which he knew to be dangerous. Odell v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 323, 24 N. E. 478,17 Am. St. Rep. 650; Magar v. Hammond, 171 N. Y. 377, 64 N. E. 150, 59 L. R. A. 315. Under these circumstances the verdict in his favor should not have been allowed to stand.

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

EAUGHEIN and CEARKE, JJ., concur. PATTERSON, J., dissents.

INGRAHAM, J.

I concur with Mr. Justice Scott. I also think that there was no evidence of negligence on the part of the defendant. The accident was caused by one of the horses stumbling and the driver struck the horse with the whip which caused the horse to jump forward, which sudden movement, as the plaintiff alleges, threw him from the platform. If, when the horse stumbled, the driver considered it necessary to prevent the horse from falling that he should strike him with a whip, the striking of the horse was not negligence which made the defendant liable for the accident.  