
    Charles Seelig, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (City Court of New York, General Term,
    October, 1896.)
    1. Negligence — Riding on front platform.
    The fact that the plaintiff was riding as a passenger upon the front platform of a street car where he was directed to go by the driver because he was smoking, does not constitute negligence in him as matter of law.
    
      2. Same — Railroad.
    Where the evidence in an action leads to the conclusion that the driver of a street car was running it down hill at an unusual speed while approaching a switch which he knew to be dangerous, and that the car struck the switch throwing the plaintiff into the street, there is sufficient evidence of negligence on the part of the driver to maintain a verdict for the plaintiff against the defendant corporation.
    Appeal from judgment in favor of plaintiff, entered upon a verdict of a jury, and from order denying motion for new trial.
    Henry A. Robinson, for appellant.
    Philip Carpenter, for respondent.
   Schuchman, J.

This is an appeal from a judgment in favor of the plaintiff, entered upon a verdict of a jury for $625, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

This action was brought to recover damages for an injury to the plaintiff’s person, caused by the negligence of the defendant railroad company, while he was a passenger on one of their cars.

The evidence shows, that on the evening of December 11, 1894, the plaintiff boarded one of the defendant’s cars at the corner of Spring street and the Bowery, which car was going through Spring street toward Broadway.

The plaintiff got upon the rear of the car having a cigar in his hand.. The conductor said to him: “ No smoking at the back, you’ll have to go to the front platform; smoke on the front platform of the car,” whereupon plaintiff went through the car onto the front platform, and there paid his fare.

Plaintiff stood on the right-hand side of the front platform, lie had thrown his cigar away,, and with both hands held on to the rail of the car back of him.

Between Mott and Mulberry streets the plaintiff was thrown from the car onto his head and shoulder, and his leg was thrown under him, and he was otherwise injured.

The car was running from east to west on the uptown track, and there was another track parallel with this, on which the cars were running from west to east, and at or about the place of accident there was a switch crossing between the two tracks and connecting the satire, so that á car could run from One track over to the other.

The evidence' further shows, that the car was going' at a very quick rate of speed, and that the driver did not slacken his speed on approaching the switch; that.' it was going down grade faster than the usual speed of a street car; that it did reach the switch where the accident happened; that the switch'was open, and when the car reached the switch, while the horses were pulling thé car along the upbound .track, the car run into thé open, switch, turned southward, run off the track and was standing across .the street, thereby causing- an unusual and powerful jerk,-in consequencé of which the plaintiff" was thrown off.

And the evidence further shows that the car driver remarked to the plaintiff, “ That he knew that switch would some day get him into trouble.” "

The car driver lost his lines, and if he "had not caught the brake he would have gone, off -the car - "too. All this shows,, and- from" it can be reasonably inferred, that the jerk was an extraordinary one".

There was, in this case, a conflict of evidence between "the. witnesses; for-instance, one- witness testified that the car Was-thrown off the regular track by the switch and .had to be pulled back; another witness testified' that the car" had not reached the switch, and that" the switch had nothing to do with the accident. But the contention between the parties was fairly and squarely submitted to the jury by the trial judge, and the jury having found upon all the conflict of evidence and the evidence itself in favor of the plaintiff, there is only for us, under the rules of law, to consider whether there was evidence enough in the case, direct or inferential, which will sustain the verdict of the jury for the plaintiff.

The evidence which we have pointed out above leads us to the conclusion that the driver of the car, who run' it at an unusual rate of speed in approaching the switch, which he knew to be dangerous, should have been more than ordinarily careful and cautious^ and ■this the evidence does not show.

The'driver’s failure to do so constituted sufficient negligence to sustain the verdict.

There is no doubt that the car, striking the open switch at an unusual rate of speed, caused the sudden and forcible jerk, which threw plaintiff off the car.

Having thus disposed of the negligence of the defendants, it only remains to consider the negligence of the plaintiff contributing to the accident.

The fact that the plaintiff was riding as a passenger on the front platform of the car is not per se negligence. Vail v. R. R. Co., 147 N. Y. 377; Graham v. R. R. Co., 149 id. 336.

We have examined all the cases cited by the attorneys on their respective briefs, and it seems to us that the case of Hastings v. Central Crosstown R. R. Co., 7 App. Div. 312, is conclusive on this appeal.

Judgment is affirmed, with costs.

Van Wyck, Ch. J., and Fitzsimons, J., concur.

Judgment affirmed, with costs.  