
    TREGEAR against THE DRY DOCK, &c. R. R. CO.
    
      New York Common Pleas;
    
    
      General Term, February, 1872.
    Cause of Action.—Contributory Negligence.
    It is negligence on the part of a passenger, to get upon a street car that is already too crowded to allow him to ride safely.
    On a tempestuous night the plaintiff got upon a crowded car, on a street railroad. There being no room on the rear platform, he got on the front platform, from which he was pushed off, after the car was in motion, by the crowd in the car and on the platform. Held, that this was a case of contributory negligence on his part; and
    ■ although there was probably negligence on the part of the company, he could not maintain an action against them for the injuries sustained by him.
    Appeal from a judgment.
    ■ Henry Tregear sued the Dry Dock, East Broadway and Battery R. R. Co. for damages alleged to have been sustained by his -being thrown from their car on their street railroad in the city of New York, by the negli gence and misconduct of the defendants or their servants.
    The circumstances relied on as constituting a. defense are fully stated in the opinion of the court. The main question raised by the appeal was, whether the failure of the company to provide for the safe accommodation of all passengers offering, rendered them liable to an action by one who, for want of accommodation, rode in an unsafe place, and was injured in consequence thereof.
    The cause was tried before Mr. Justice Loew and a jury, and the plaintiff’s complaint was dismissed with costs. Judgment having been -entered thereon, the plaintiff appealed to this court at general term.
    
      R. H. Chittenden, for plaintiff, appellant;
    Insisted that the evidence showed positive negligence on defendants’ part in permitting the car to become crowded, in taking on the plaintiff when there was not room to carry him, and in not making and enforcing all regulations necessary for the safe transportation of their passengers (Willis v. Long Island R. R. C., 34 N. Y., 670; Rehn v. Richardson, General Term City Court of Brooklyn, 1870). That defendants’ having stopped their car for the plaintiff to get on was equivalent to an implied guaranty that he should be safely accommodated, and to invite or permit the plaintiff to get on or into their over-crowded car was negligence.
    II; There was no negligence on the part of the plaintiff. 1. The defendants’ car being so crowded as not to :afford plaintiff room inside it was not negligence on his part to ride on the front platform (Willis v. Long Island R. R. Co., 34 N. Y., 670). 2. There is no rule of law which compels the passenger to seek a place on the vehicle least exposed to danger, and in this case the defendants having stopped their car to take on the plaintiff on the front platform, the latter occupied that position by the defendants’ invitation and permission (Carroll v. N. H. & Harlem R. R. Co., 1 Duer, 571; 6 Id. 415, 416; Colegrove v. N. H. & Harlem R. R. Co., 29 N. Y., 492; 6 Duer, 382). 3. Whatever rule respecting riding on the front platform may have been adopted and posted by the defendants has no bearing on this case. The provision of chapter 234, Laws of 1850, 2 Rev. Stat. p. 691, § 59, upon which the defendant relies is coupled with this condition, viz : “Provided said company at the time furnished room inside its passenger cars sufficient for the proper accommodation of the passengers” (See opinion of the court by Smith, J., in Willis v. Long Island R. R. Co., above cited ; Colegrove v. N. H. & Harlem R. R. Co., above cited).
    III. There were questions of fact which should have been submitted to the jury. 1. Whether the defendants were guilty of negligence in over-crowding their car, and whether this negligence resulted in the plaintiff’s injury are questions of fact which should have been submitted to the jury (Drew v. Sixth Ave. R. R. Co., 26 N. Y., 49; Wolfkiel v. Sixth Ave. R. R. Co., 38 Id., 49). 2. There was conflicting evidence as to whether the plaintiff was safely on the platform (the witness Murphy, in this respect contradicting the plaintiff and the witness Barber), which should have been left to the jury (Ernst v. Hudson R. R. Co., 39 N. Y., 61; Dickson v. McCoy, Id., 400; Mangam v. Brooklyn City R. R. Co., 36 Barb., 230).
    
      John M. Scribner, Jr., for defendants, respondents.
    I. Where a railroad passenger is injured, the burden of proving that the injury was caused by the negligence of the railroad company or their servants, rests upon the party seeking to recover damages therefor. The plaintiff must make it appear affirmatively, 
      that he exercised due care (Adams v. Inhabitants of Carlisle, 21 Pick., 146; Gahagan v. Boston, &c. R. R. Co., 1 Allen, 187; Hickey v. The same, 14 Id., 429; Todd v. Old Colony R. R. Co., 3 Id., 21; Same case, after new trial, 7 Id., 207; Indianapolis R. R. Co. v. Rutherford, 29 Ind., 82; Cotton v. Wood, 8 C. B. N. S., 572; Warner v. N. Y. Central R. R. Co., 44 N. Y., 465).
    The mere fact that a person is injured while riding in a railroad car, does not impose upon the company the burden of disproving negligence (Holbrook v. Utica and Schenectady R. R. Co, 12 N. Y. [2 Kern], 236; Curran v. Warren Chemical Manufacturing Co., 36 Id., 153).
    Upon the question of negligence on the part of the defendants, and also upon that of the absence of any contributory negligence on the part of the person injured, the plaintiff holds the burden of establishing an affirmative case upon the whole proof, to justify the submission of these issues to the jury (See authorities above cited.
    He must establish affirmatively,
    1. That the injury was occasioned by the negligence of the defendant.
    2. That he was guilty of no degree of negligence contributing to the injury (Deyo v. N. Y. Central R. R. Co., 34 N. Y., 9; Button v. Hudson R. R. Co., 18 Id., 248).
    “ The question presented to the court or the jury is never one of comparative negligence (Wilds v. Hudson River R. R. Co., 24 N. Y., 430; Grippen v. N. Y. Central R. R. Co., 40 Id., 51).
    
    
      II. Plaintiff wholly failed failed to establish any cause of action against the defendant. ¡Neither the breach of contract nor negligence on the part of the defendants was proved. IN either driver nor conductor knew his intention to ride, and the defendants are in no wise responsible for the crowd of passengers which was occasioned by the'violent storm, arid circumstances beyond their control (Spooner’s Case, 31 Barb., cited from page 426).
    No case has yet been decided that a carrier is bound to exercise guardianship to such extent over its passengers. ' He stood there at his own risTc (Hickey’s Case, 14 Allen, cited from page 431). Plaintiff’s own negligence was the sole cause of his injury.
    He assumed this exposed position voluntarily, against the rules of the company conspicuously posted in all its cars, in which he was daily accustomed to ride. The whole case is consistent with the opening made by the plaintiff’s counsel at the trial in respect to its “ novelty,” and no action can be maintained upon the facts presented by the plaintiff, unless the court is prepared to decide that a passenger carrier is an insurer against, not only the negligent acts of its own agents, but against the negligence and imprudence of the passenger himself, and that, too, when all the authorities agree that a carrier of passengers is not an insurer (Bowen v. N. Y. Central R. R. Co., 18 N. Y., 408; McPadden v. Same, 44 Id., 478).
    A passenger is not justified in incurring risks unnecessarily, however rare the chances may be that he will suffer by it (Hickey v. Boston & Lowell R. R. Co., 14 Allen, 429).
    ■ For an inj ury befalling a passenger by reason of his disregard of regulations which are necessary to the conducting of the business, the company are not liable in damages, even though the negligence of their servants concurred with their own negligence in causing the mischief (Sullivan v. Philadelphia & Reading R. R. Co., 6 Casey, 234 ; Penna. R. R. Co. v. Zede, 33 Penn., 318 ; Spooner v. Brooklyn City R. R. Co., 31 Barb., 419). That the plaintiff' got on the car at the front platform was, itself, evidence of contributing negligence on his part. It needs no proof to show that the Bear platform is safer than the front. Common experience so teaches (Solomon v. Central Park N. & E. R. R. Co., 1 Sweeny, 301).
    Clark v. Eighth Avenue R. R. Co., 36 N. Y., 135, is not an authority against us in this case, but the contrary. The facts were materially different. Grover, J., says : When it appears that a passenger is riding upon a car in a place of hazard or danger, his negligence is prima facie proved, and the onus is iipon him to rebut the presumption (See also Solomon v. Central Park, &c., R. R. Co., supra ; and Clarke’s Case, 22 Barb., cited from page 662).
    Nor is the recent Maine case (Dunn v. Grand Trunk Railway Company, 10 Am. Law. Reg. N. S., 615) an authority against us for similar reason ; the facts are different. The plaintiff in that case paid fare, and the negligence of the defendant was clear because the car was thrown from the track by a brolcen rail. There was no contributing negligence on the part of the plaintiff.
    Sheridan v. Brooklyn R. R. Co., 36 N. Y., 39, is not in point at all. In that case the boy had paid fare and taken a seat, but was ordered out by the conductor, to make room for an adult passenger.
    That riding on the front platform of a street car is hazardous and negligent, is so clear that, in Missouri, a statute has been adopted prohibiting such act, and where a passenger is inj ured while on the front platform, o"r in entering or leaving the car at the front, his negligence is presumed by the courts of this State (McKeon v. Citizens’ R. R. Co., 42 Mo., 79).
    III. The notice read in evidence is a perfect bar (Laws of 1850, ch. 140, § 46).
    IV. The plaintiff was bound by the printed regulations, read in evidence, both by the statute and independent of the statute. He had used the cars so frequently that he is presumed tó have had knowledge of the contents of the placard notice, “warning” passengers of the danger of riding on the front platform, or on the steps. He assumed his position voluntarily and at his own risk (Hickey v. Boston & Lowell R. R. Co., 14 Allen, 429; Baltimore City Pass. R. R. Co. v. Wilkinson, 30 Md., 224; Robertson v. N. Y. & Erie R. R. Co., 22 Barb., 91; Higgins v. N. Y. & H. R. R. Co., 2 Bosw., 132).
    V. If plaintiff was not solely in fault, this was, in all respects, a case of “unavoidable accident,” for which the law holds no one responsible (Dygert v. Bradley, 8 Wend., 469-473; Ingalls v. Bills, 9 Metc., 1; Wakeman v. Robinson, 1 Bing., 213; Bullock v. Babcock, 3 Wend., 391; Center v. Finney, 17 Barb., 94).
    VI. Upon an uncontroverted state of facts, the question of negligence is always a question of law, to be decided by the court, and not for submission to the jury (Gonzales v. N. Y. & H. R. R. Co., 38 N. Y., 440; Harper v. Erie Railway Co., 3 Broom (32 N. J.), 88; Pittsburg, &c. R. R. Co. v. McClurg, 56 Penn., 294; Gavett v. Manchester, &c. R. R. Co., 16 Gray, 501; Cotton v. Wood, 8 C. B. N. S., 572; S. C., 98 Eng. Com. Law, 566; Solomon v. Cen. Park, &c. R. R. Co., 1 Sweeny, 298; Wilcox v. Rome & Watertown R. R. Co., 39 N. Y., 366).
    VII. The court at the trial, in nonsuiting the plaintiff, made the only proper disposition of this case, which could have been made consistent with the authorities governing the questions at issue, and the facts disclosed by the testimony introduced in behalf of the plaintiff. There was no conflict of testimony requiring submission to the jury. The facts are wholly undisputed. And in every such case where there is an absence of proof showing negligence in the defendant, or where the negligence of the plaintiff is manifest, the duty of the court to dismiss the complaint is very clear, and the nonsuit in this case was justified on both grounds (Johnson v. Hudson R. R. R. Co., 20 N. Y., 
      73; Wilds’ Case, 24 Id., 430; S. C., 29 Id., 315; Sheldon v. Hudson R. R. R. Co., 29 Borb., 229; Suydam v. Grand St. R. R. Co., 41 Id., 380; Ernst v. Hudson R. R. R. Co., 39 N. Y., 61; approving the law pronounced in former decision in same case, reported in 24 How. Pr., 97). Wilds’ Case 24 N. Y., 430, is constantly cited in the court of appeals, and the legal doctrines pronounced in that case have never been shaken (Grippen v. N. Y. Cen. R. R. Co., 40 N. Y., 52; Warner v. N. Y. Cen. R. R. Co., 44 Id., 465; Ernst’s Case, 35 Id., cited from page 37; Dascomb v. Buffalo, &c. R. R. Co., 27 Barb., 221; Thrings’ Case, 7 Robt., 616; Haring v. N. Y. & Erie R. R. Co., 13 Barb., 15; Gonzales v. N. Y. & H. R. R. Co., 38 N. Y., 440).
   By the Court.—Daly, Ch. J.

This was a case of co-operating' negligence. There may have been and probably was negligence on the part of the defendant’s employees in allowing the car to be crowded to the extent that it was. It was a tempestuous night. It was raining heavily when the plaintiff got on the car. He says it was about as near a hurricane as anything he conld remember during his life. The cars upon the defendants’ line had, during the storm, to stop running because the drivers.could not see the distance of a car ahead, and there was a blinding rain striking the car upon which the accident happened. It was about seven o’clock in the evening, an hour when a great number of people are returning from their occupations to their homes, and as there was at the time a violent storm, it may have been difficult for the conductor to enforce the ordinary regulations from the natural eagerness of people, under such circumstances, to get into the car, “ It was,” says the plaintiff’s witness Barbour, “ a very stormy night, and all that could get in the car would get in.” The plaintiff stood at the corner of Grand-street and Broadway waiting for a car, and two passed which were so full that there was no chance of his getting on them. The car upon which the accident occurred stopped, as the plaintiff says, waiting for passengers, or, as one of his witnesses testified, it stopped to take in four or five shop girls.

The plaintiff says he saw there was no room on the hind platform and that he got on the front platform, which was very crowded, but afforded room enough for him to get on and stand. One of the plaintiff’s witnesses testified that he should think that there were seven or eight persons on it when the accident happened, and that there might have been more. That it was a rainy, stormy night, and that there were just as many people on the car as could cram themselves in and on the platform. The plaintiff says that he had hold of the front rail with both his hands; showing the crowded state of the platform and th'e insecurity of his position. The plaintiff had been traveling upon this particular road for years, and, as he says, knew the line well,—had been in the habit of riding in the cars of that line every day for eighteen months before the accident. For nearly three years previous a notice was conspicuously placed upon either end of aE the cars of the company prohibiting passengers from getting on, off, or occupying the front platform, or from riding on the steps. It was printed in such type as to be read at any reasonable distance, in any part of the car. It had the word “ warrirg-” in large capitals at the top, was placed as conspicuously as it could be in a vehicle of the kind, and yet this warning, or notice, the plaintiff says he had no recollection of seeing.

After the plaintiff had got upon the car, and before it had moved half a block, the plaintiff says that he was pushed off by the crowd inside, that they pushed behind so as to make room to go in front; that they got on the front platform and pushed him off; but wa.s so agitated he did not know how. His witness Barbour, who was standing on the platform immediately behind the driver, says that he noticed the plaintiff standing on the platform facing the horses and noticed a movement of somebody to get off, and could not say how, but he noticed that the plaintiff fell. That he did not know how he fell, until he heard him call out. The probability is that the plaintiff got on the front platform at the same time that the five shop girls got in at the rear, and that their coming in caused á movement forward and on the platform, the pressure of which the plaintiff was unable to resist or avoid, by getting off quickly, the car being then in motion.

The defendants’ witness, Murphy, saw the accident from the sidewalk, -where he was standing waiting for a car, and thus describes what he saw: The front platform was very much crowded, and there was not room for a man to -get on. The plaintiff could not get on, and was standing on the step, with one hand on the dash-board, and the other on the brace or body of the car. That the hand on the dash-board gave way, the plaintiff being crowded off, as witness supposed, and that the plaintiff dropped on his side, and, as appeared from the evidence, fell under the front wheel, and his hand was crushed.

When the testimony was closed, a motion for a non-suit was made, and it was granted. Assuming the accident to have occurred in the manner describí d by the plaintiff and his own witness Barbour, it was a case of contributory negligence, in which the plaintiff was as much to blame as the defendants’ employees, by voluntarily placing himself in an exposed and dangerous position, in the crowded state of the car at the time when he got upon it. It is not necessary to go into the reasons at length which show this, as they are sufficiently presented in the well considered case of Spooner v. Brooklyn R. R. Co., 31 Barb., 426, 427.

The judgment should be affirmed.

Larremore and Yak Brunt, JJ., concurred.

Judgment affirmed.  