
    Julius Newmark, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    June 12, 1908.
    Railroad — negligence — boarding train while in motion — contributory negligence.
    Where in an action for negligence it appears that plaintiff was awaiting a train at a station, that a train not scheduled to stop approached and slackened itg'spced to about two miles an hour in. response to a signal from the towerman, but did not stop, and the plaintiff, stepping on the lower step of the last car of the moving train, was thrown off and injured by a jerk due to the release of the air brakes, a judgment in his favor will be reversed.
    As the plaintiff had no right to ride on that train, the engineer discharged his duty in operating it in a manner consistent with the safety of those already on board.
    •The plaintiff was guilty of contributory negligence, it being a negligent-act per se to board a moving train without invitation.
    • A call of '“all aboard” not heard by the plaintiff was not an invitation to him.
    Under the circumstances the plaintiff was not a passenger, nor entitled to the degree of care due to a passenger.
    Appeal by the defendant, The Hew York Central and Hudson Eiver Eailrbad 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 20th day of June, 1907, upon the verdict of a jury for $5,500, and also from an order entered in said clerk’s office on the 20tli day of June, 1907, denying the defendant’s motion fór a new trial made upon the minutes.
    
      Robert A. Kutschbock [Charles C. Paulding with him on the brief]’for the appellant.
    
      Frederick Wiener, for the respondent.
   Woodward, J.:

The plaintiff has recovered a judgment of $5,646.20 against the defendant in an action for damages for personal injuries alleged to have been sustained through the negligence of the defendant, without fault on the part of the plaintiff, the defendant appealing from the judgment and order denying a motion for a new trial.

On the 10th day of March, 1905, at about twenty minutes past seven o’clock in the morning the plaintiff entered upon the platform, of the defendant’s station at One Hundred and Tenth street, intending to take a train for the Grand Central Station. The plaintiff had been in the habit of using the Subway in going to his work downtown, but owing to a strike among the employees of that line he made use of the defendant’s lines, the.first occasion being the morning prior to the accident complained of in this action. The station platform at One Hundred and Tenth street is 262 feet long and something over 9 feet wide, the four tracks of the defendant being upon a viaduct at this point. The outside tracks are used for local traffic and the two inside tracks for through trains. Track No. 1, which passes immediately alongside of tile platform, is used for the south-bound local traffic, and on the morning of the accident there were from 150 to 200 people,upon this platform waiting for transportation. One train came along and passed over this south-bound local track without stopping, so it must have been apparent that all trains using this local track did not stop for passengers. Shortly afterward a second train came along, reducing its speed as it approached-the station, and the crowd pushed forward to get aboard. This train did not stop, though it appears from the evidence that it was-reduced in speed until it was going only from two to four miles an hour. The cars were all full, and the platforms of the eight cars comprising the train were all more or less filled with passengers, and it appears that several men and women took advantage of the slow movements of the train to get on board. The plaintiff at this time was at or near the southern end of the platform. He had seen one train go by, and he stood there at the southern end of the platform until an engine, tender and seven cars had passed the point where he was standing, and then, fearing that he would have no' other chance to get on board, he stepped upon the lower step of the platform of the last car, with both hands holding to the guardrails of the car, and while in this position his witnesses testify that the train gave a sudden jerlc and he felt his hold give way, and the next he knew he was falling into darkness. He was so seriously injured that both legs had to be amputated, one at the thigh, the other just below the knee. This train came down the Harlem branch from Brewster., Owing to the strike the defendant had ordered four extra-cars to be attached -to the train at Mt. Kisco, so that the train consisted of eight cars. This train did not ordinarily stop ¿t One Hundred and Tenth street;. it was not scheduled to stop there, nor, indeed, at many of the local stations. ■ On. this morning, however, ■ the defendant, to assist in taking care of the heavy traffic, had given orders that the train should pick up passengers until it was full, and should then proceed, making only its regular stops. The road' is operated by the block system, the block covering the point of the accident extending from One ■ Hundred and Fourteenth street to One, Hundred and Eighth street. The engineer of the .train had orders not to stop at One Hundred, and Tenth street, but the towerman, having charge of the block, had received orders to transfer this train from track Ho. 1 to track Ho. 2, it-being feared that with the heavily loaded train it would not be safe to operate through the narrow tunnel of track 1. It appeared, however, that there was a. through train within this block at the particular time that the plaintiff’s train approached, and so the signal was displayed, calling upon the engineer to slow down until the way was clear, and it -was in response to this signal tha,t the train was decreased in speed as it approached the One ' Hundred and Tenth street station. The train, if the way was not cleared, would have to. come to a stop at One Hundred and Eighth Street, but it -appears from the evidence that just as the plaintiff stepped upon the platform of the last car the signal winch barred the way was changed, the tracks were open, and the engineer released the air brakes and proceeded on his way, only to be'stopped immediately afterward by. the whistle which was sounded by one of the trainmen who witnessed, the accident. This is the explanation given by the defendant of the sudden jerk-or jolt, as it is termed by the plaintiff’s witnesses, and it is not disputed, and the evidence" does not disclose that it was such a jolt as to occasion any serious disturbance to any one who was already upon the train in a safe position. The question presented upon this appeal is whether the defendant was guilty of" negligence, under the circumstances; whether it failed in the discharge of any duty which it owed to this plaintiff, and whether the plaintiff was himself " free from negligence contributing to the accident, and these two questions are very closely related here, for the degree of care on the part of the defendant, as it related to this plaintiff, must be determined by what it had a right to anticipate the plaintiff would do. There is no question, under the evidence, that "if the track which it became necessary to use for the safety of the defendant’s passengers had been free, the train would not have slackened its speed at this point, and the plaintiff would not have been injured, for it would have been obvious that the. train was not to stop. But railroads have to be practically operated; they are charged with a high degree of care to transport passengers safely, and they must' slacken the speed or stop altogether when necessary to preserve the lives and limbs of passengers, and they must do this whether they are near a passenger station or not. They must, likewise, in handling the traffic of a great city,^ operate with due regard to the con-' venience of the public, and, in the practical running of trains, it is neither economical nor expedient to make stops unless absolutely necessary; great loss of energy results from the mere loss of momentum, so tkat.it is customary to keep trains in motion through delays so far as possible, even though the rate of progress is very slow. The engineer on this particular train had his orders not to make a,ny further stops, and he was only slackening his speed in obedience to the danger signals, and he had no reason to anticipate that witli his train moving at the rate of two to' foiir " miles an hour passengers, without invitation, would clamber' aboard, and when he .received the signal that the track was clear ' it does not appear that he did anything except to release the' air brakes, thus letting the train proceed at the speed which would have been maintained except for the application of the brakes. If this had resulted in injuring some passenger already upon the train in a safe position except for the act of the engineer, there Would be a question for the jury, but is this true where the injury results to one who has clambered on while the train was still in motion and where there was no invitation on the part of any one for the passenger to get on board ? Was the engineer, performing the service of the defendant, bound to assume that people would attempt to board the train simply because it had become necessary for him to reduce the speed in answer to a danger signal ? Was he bound to operate the train in such a. careful manner that a passenger-in the act. of climbing aboard should not be injured when lie did not know that there was such a passenger ? The evidence of the-witnesses on the train is to the effect that, the so-called sudden jerk was merely such a jolting of the cars as is usual in changing . the rate of speed or in releasing the air brakes, and negligence has . scarcely readied the degree of refinement where a defendant is bound to operate its trains in such a manner that no one shall be swayed or jostled in crowded cars where there is no injury to those who are properly in their places. The' plaintiff,- while he had paid . his fare and was entitled to. a ride, was not entitled to a ride upon this particular train, for it was not .scheduled to stop at this station, and the defendant cannot be held to any- higher duty toward him than to opérate- its train in a manner consistent with its obligation to him in Ins known situation. If. the defendant, through, its engineer, who had charge, of the physical operation, knew that the plaintiff . was- in a dangerous position; if it knew that lie was actually trying to get on' board, it would . owe .the duty of using the care incident to such-special knowledgegbut in -the absence of such special knowledge it was discharging its dutytin operating its train in a manner consistent with the safety of those who were already . on board, and none of these are here complaining.

This is,, perhaps, but another way of ■ saying that the plaintiff was, as matter of law, guilty of negligence'contributing to the accident. , He voluntarily placed himself in a situation where the ordinary and incidental acts of the engineer in operating the train produced the' injury, and. lie. is hardly in a. position to complain of the result. While- there was for a time an apparent conflict of - authority in the Court of Appeals as to the - status of one who got on or off of a ■ moving'train, the law appears to have been brought back to a liar.monious foundation in the recent case of Mearns v. Central R. R. Co. of N. J. (163 N. Y. 108, 111) where the case of Solomon v. Manhattan R. Co. (103 id. 437) is recognized as laying down the correct rule. In that case it was said that it is the general rule of , law established by the decisions in this and other States' * * * that the boarding or alighting' from a' moving train is presumably and generally a negligent act per se, and that in order to r.ebut this presumption and justify a recovery for an injury sustained in getting on or off á 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,” and the court, in the same case, say : “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 in the former case. He may be compelled' to wait for another train, but this is an inconvenience merely, which does not justify exposing himself to hazard.” This was exactly the situation in the case at bar. It 'is true that plaintiff’s witness and special friend' testified that when the train came up to the station the conductor was oti the front platform of the first car and that he waved his hand and cried “ all aboard,” but the plaintiff distinctly testified that he did not hear anything of the kind, so that no special invitation reached him, and there was absolutely nothing in the circumstances which can be fairly construed as holding out an invitation for the plaintiff to climb on board this train while in motion. The statement that he thought it was going to come to a full stop is hardly consistent with the fact that the last car was passing the southern end of the platform when he made his effort to get on board, and under the authorities we are clearly of the opinion that the plaintiff is not entitled to recover in this action.

The suggestion that he had already reached a place of safety and was entitled to the degree of care of other passengers is hardly supported by the evidence; the most that can be spelled out of the evidence is that the act of the plaintiff in stepping upon the lower step of the car, with both hands holding upon the railings, occurred simultaneously with the jerking of the car. He had not reached a place of safety; he was merely in the act, and before he had reached a place of safety or had placed himself where the defendant . owed him any special duty, he was forced to loosen his hold by the jerking of the cars, and the result followed-. It is unfortunate for the plaintiff, but the law is clear upon this subject and the judgment and order appealed from, must be reversed.

• The judgment and order appealed from should be reversed and. a new trial granted, costs to abide the event.

Rookeb, Gtaynoe, Rich and Milleb, JJ., concurred.

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