
    Sarah Solomon, Adm’x, App’lt v. Manhattan R’way Co., Resp’t.
    
      (Court of Appeals,
    
    
      Filed November 23, 1886.)
    
    1. Negligence—Contributory—Non-suit.
    In an action by the plaintiff to recover damages for the death of her intestate, alleged to have been caused by the negligence of defendant in operating an elevated railway, it appeared that after the starting of the train from the station, and while it was in motion, the deceased, with two other men, attempted to board the train; the two others succeeded in so doing, but the intestate was brought violently in contact with a projecting water pipe, receiving injuries thereby which caused his death. The evidence was conflicting as to whether the gate of the car platform was closed before the two men in front reached the train, or was pushed open by them. It appeared from the testimony given that the deceased was familiar with the locality, and that the platform was well lighted. ■Held, that the deceased was guilty of contributory negligence, and could not recover.
    2. Same—Prima facie a negligent act to attempt to board a train
    in motion.
    It is presumptively a negligent act for a party to attempt to board a moving train, and to excuse such an act and free the plaintiff from the charge of contributory negligence there must be a coercion of circumsti-nces which did not leave the passenger in the free and untrammeled possession of his faculties and judgment.
    Appeal from judgment of supreme court, general term, first department, affirming the judgment of the circuit court dismissing the complaint in an action to recover for the death of plaintiff’s intestate, alleged to have been caused by negligence of defendant in operating its railway. The action has been twice tried.
    Upon the first trial the plaintiff had a verdict. The general term, upon appeal, reversed the judgment for error of law, such error being the refusal to non-suit the plaintiff or to direct a verdict for defendant. See 31 Hun, 5.
    From this order plaintiff appealed to the court of appeals, and the appeal was dismissed. See 95 N. Y., 672.
    Upon the second trial the complaint was dismissed and judgment in defendant’s favor was affirmed by the general term, and from this judgment plaintiff appeals to this court.
    The facts are sufficiently stated in the opinion.
    
      George P. Smith, for app’lt; Edward S. Rapallo ana Robert E. Deyo, for resp’t.
   Andrews, J.

It is undisputed that the train was in motion at the time the plaintiff’s intestate attempted to enter it. It had been brought to a stop, according to the usual custom, on reaching the Chatham square station for the purpose of • discharging and receiving passengers, and had started again before the deceased and the two men in front of him, hurrying from the Third avenue train across the bridge and down the steps to the station platform of the Second avenue road, had reached the rear of the first car. It is also undisputed that the conductor, who was standing on the platform between the first and second cars, had given the signal to start the train and had closed, or attempted to close, the gate before the first of the three men reached the car. The train at this time, as we have said, had started and was slowly moving, but with a constantly accelerated speed. The two men in advance of the intestate succeeded in safely boarding the train. The intestate was a few feet behind them. He attempted to get on the platform of the car after the others. The evidence tends to show that he took hold of the stanchions of the car with both hands, and placed one foot upon the car platform, and was in the act of passing on to the car when the conductor closed the gate against the deceased, who, clinging to the car, or possibly being caught in some way by the gate, was carried along a few feet, until his body came in contact with a water pipe extending horizontally at the end of the station platform, and received the injuries of which he subsequently died.

There is a conflict of evidence as to whether the gate had been fully closed before the two men in front of the intestate reached the car. The conductor testified that it was closed at that time and was pushed open by them. Witnesses for the plaintiff testified that. the conductor was closing the gate as the two men approached the car and opened it for them to enter, and then closed it as the intestate was attempting to get on. There is also some discrepancy in the evidence as to the distance from the car platform to the water pipe at the end of the station platform, when ■ the intestate reached the car. One of the plaintiff’s witnesses, who saw the whole transaction, testified that the distance was four or five feet, and other witnesses testified that it was ten feet. Wilson, a witness for the plaintiff, testified: “ Although my glance was momentary, I saw him (deceased) constantly from the time he put his foot on the car until he struck the projection; in my best judgment that may have been five feet, but I think it was about four feet, the distance.” Haller, also a witness for the plaintiff, was asked: “The whole occurrence, from the time the conductor pulled the bell to start the car until Mr. Solomon struck against the projection and fell, occupied but a very short space of time, did it not?>y He answered: “A very little time; quicker than I can tell you.”

In view of the undisputed fact that the car was moving when the deceased attempted to enter it, it is evident that the obstruction against which the deceased was carried was perilously near, and that a collision was inevitable if the deceased should fail to get on the car and should be carried along a few feet in the position in which he was when the gate was .closed. The station platform was lighted,'and “everything was clear.” The deceased had been accustomed to take the train in the evening at this station for more than a year. His son, who usually accompanied his father, testified that “the train stops very sharp and goes off very quick.” The trains ran every five minutes. There can be no doubt that the deceased was familiar with the surroundings and was acquainted with the manner of operating the trains. We are of opinion that the nonsuit was properly directed. It must be assumed that the deceased, when he attempted to enter the car, knew that it was in motion. We cannot know what'was passing in his mind, or of what existing facts he was actually cognizant, except by inference. But what others saw and knew in respect to matters equally open to his observation, must be presumed to have been seen and known by him; especially is this presumption a reasonable one in respect to matters which common prudence required him to know and observe before he attempted to enter the car. Knowing, then, as must be inferred, that the train was in motion, he took the risk of the attempt, to board it. The movement of the train was itself notice to him that the time for receiving passengers had passed. He undoubtedly thought he could board the train in safety, and except for the act of the conductor in closing the gate, the attempt would probably have been successful. It does not appear that the deceased knew of the attempt of the conductor to close the gate before the two men who preceded him entered the car. But he was in a position to have seen it, and the act was observed by the other witnesses.

We are of the opinion that the attempt of the deceased to enter the train, under the circumstances disclosed, was in law a negligent act which contributed to his death. It is, we think, the general rule of law, established by the decisions in this and other states, as claimed by the learned counsel for the respondent, that the boarding or alighting from a moving train is presumably and generally a negligent act per se, and that in order to rebut this presumption and justify a recovery for an injury sustained in getting on or off a moving train, it must appear that the passenger was by the act of the defendant put to an election between alternative dangers, or that something was done or said, or that some direction was given to the passenger by those in charge of the train, or some situation created, which interfered to some extent with his free agency, and was calculated to divert his attention from the danger and create a confidence that the attempt could be made in safety. McIntyre’s Case (37 N. Y., 287) and Filer’s Case (49 id., 47) were cases of injury sustained by passengers, in the one case, by going from one car to another by direction of one of the train men to get a seat while the train was in motion; and in the other, by leaving a moving car at a station by direction of the brakeman, who directed the plaintiff, a woman, to get off, saying the train would not stop.

In Burrows v. The Erie Railway Co. (63 N. Y., 556), the court reversed a judgment recovered for an injur)7- to a passenger in alighting at his station from a moving car, and in Morrison v. The Erie Railway Co. (56 N. Y., 302), the court reversed a verdict for the plaintiff under very similar circumstances. It is said by Rapallo, J., in Burrows v. The Erie Co., that “the cases in which a recovery has been allowed, notwithstanding that the passengers' undertook to leave the car while in motion, are exceptional and depend upon peculiar circumstances. In short, as we now understand the rule established by the decisions, it is presumptively a negligent act for a passenger to attempt to alight fa’om a moving train, and it is not sufficient to rebut the presumption that the trainmen acquiesced in the action of the passenger or that the company violated its duty or contract in not stopping the train, or that to remain on the train would subject the passenger to trouble or inconvenience, but that to excuse such an act and free the plaintiff from the charge of contributoiy negligence, there must be a coercion of circumstances which did not leave the passenger in the free and untrameled possession of his faculties and judgment.”

Negligence, no doubt, is usually a question of fact, of which tilae jury must • inquire, but the inference of negligence in a given case may be so clear and convincing that the judge may direct a verdict. The conclusion that it is prima facie dangerous to alight' from a moving train is founded on our general knowledge and common experience, and it is akin to the conclusion, now generally accepted, that it is in law a dangerous and therefore a negligent act, unless explained and justified by special circumstances, to attempt to cross a railroad track without looking for approaching trains. In boarding a moving train there is generally less excuse than in alighting from one. The party attempting it is not often under the same stress of circumstances as frequently happens on the former case. He may-be compelled to wait for another train; but this is an inconvenience merely, which does not justify exposing mITYIQP11T Tfl mí-1 !ZAT*ii

In the Phillips Case (49 N. Y., 117) the plaintiff was thrown, against a platform in attempting to board a train while in motion, and a nonsuit was sustained in this court.

In the present case the intestate was familiar wdth the situation. He must have known that, according to the rules, the time for receiving passengers had passed, and that the greatest celerity and promptness were required on the part of those entrusted with the management of trains. It is said that the opening of the gate by the conductor was an invitation for him to enter, and that if the conductor had not closed the gate upon him he would have boarded the train in safety. It is true that the opening of the gate to admit the two men in front of the deceased, and their safe entrance, may have given the intestate confidence that he could enter also. But the act of the conductor, as the sequel shows, was not intended as an invitation to' the intestate, and the conductor’s misjudgment or negligence •was one of the hazards which the intestate ran. It did not relieve him from the imputation of negligence, because he did not foresee the obstruction which would be interposed, or that without the negligence of the conductor the accident would not have happened. One of the very dangers of the situation arose from the fact that all the contingencies upon which the success of the effort to enter the car depended could not be anticipated. If men will take such hazards they must bear the consequences of their own rashness, and it is no just reason for visiting the consequences upon another that his negligence co-operated in producing the result.

We think the judgment should be affirmed.

Ruger, Ch. J., Earl and Finch, JJ., concur; Miller and Daneorth, JJ., dissent; Rapallo, J., taking no part.  