
    Maurice Coleman, respondent, v. The Second Avenue Railroad Company, appellants.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 23,1886.)
    
    1. Negligence—Street railroad—Passenger may pass along step of open CAR.
    In an action to recover damages for injuries alleged to have heen caused by defendants’ negligence when the evidence was to the effect that the plaintiff who was a passenger in one of defendants’ open cars was sitting in the rear seat and defendant permitted him to be crowded out by other passengers. There was a step outside the car which was used to pass from seat to seat. When plaintiff was made uncomfortable, if not unsafe, he attempted to pass along the step to a front seat where it was less crowded. In so doing he was struck by the iron column of the elevated road which is nearer the street car tracks at that point because the street car tracks are wider apart than elsewhere. Held, that it was not negligent, as a matter of law, for plaintiff to use the step to place himself in a new seat.
    3. Same.
    It was not negligent, as a matter of law, to misjudge the distance between the car and the iron column.
    3. Same—Common carrier bound to highest degree of foresight.
    The carrier is hound to use the highest degree of foresight in anticipating danger and in guarding against them, and it is for the jury to say, under the evidence, whether that duty was performed.
    4 Same—Contributory negligence.
    The question whether plaintiff was bound to stop the car was not one of law but of fact for the jury.'
    
      P. & D. Mitchell, for appellants, Second Avenue Railroad Company.
    
      Hutchins & Platt, for respondent, Coleman.
   Barnard, P. J.

The plaintiff was a passenger in the defendant’s car, sitting in the rear seat. The company permitted him to be crowded out by other passengers. The car was an open one. There is a step outside the car, upon which the passengers enter the car, and it can be and is used to pass from seat to seat. When the plaintiff was made uncomfortable, if not unsafe, he attempted to pass along the step to a front seat, where it was less crowded.

In doing so he was struck by the iron column of the Elevated railroad. At this point the car track of the de-fendant’s street railroad is closer than usual to the iron supports of the Elevated railroad. They are of uniform distance, but the street railroad varies sometimes in dis-' tance between its tracks, and thus their cars are brought in some places nearer the iron columns of the Elevated road than in others, It was not a negligent act, as a matter of law, for the plaintiff to attempt to use the step to place himself in a new seat in the place of the one from which the defendant had permitted him to be forced. Dickson v. Brooklyn, etc., Railroad Co., 100 N. Y., 171. It was not negligence, as a matter of law, to misjudge the distance between the car and the iron column, especially so when this column was nearer than they usually were, and with a car which itself projects considerably over the space between the defendant’s tracks and the Elevated railroad structure. Dobiecke v. Sharpe, 88 N. Y., 203; Brassel v. N. Y. C. and H. R. R. Co., 84 id., 241. The charge of the judge in respect to the principles which govern this class of actions, is supported by numerous cases. The carrier is bound to use the highest degree of foresight in anticipating possible danger and in guarding against them, and it was for the jury to say, under the evidence, whether this duty was performed.

The requests to charge to the effect that the plaintiff was bound to stop the car, or request the conductor to do so, did not present a question of law,, but one of fact for the jury. If the request was good, there was no question for the jury. The plaintiff did not ask the conductor to stop, but proceeded to release himself from a difficulty in which the defendant had placed him, by using a step apparently safe to be used for the purpose.

The judgment should be affirmed, with costs.

Dykman, J., concurs.  