
    James Bradley, Admintstrator, etc., Resp’t, v. Second Avenue Railroad Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November, 15, 1895.
    
    1. Negligence—Question for jury.
    The evidence, in this case, was held insufficient to authorize the jury to-find that the defendant’s servant was guilty of negligence in applying the break so suddently and sharply as to cause plaintiff’s intestate to be hurled from, his position on the platform.
    2. Same—Contributory.
    Where passengers on a street railroad car, without reasonable cause, leave the car orplace themselves on the outside of it, when in motion, they assume the hazards of so doing.
    3. Same.
    A passenger, who leaves an absolutely safe, place to go into one more . hazardous at all times, is guilty of contributory negligence.
    Appeal from a judgment, entered on a' verdrct in favor of plaintiff, and from an order denying a motion for a new trial.'
    
      Pciyson Merrill, for app’lts; Summer B. Styles, for resp’t.
   Parker, J.

On the evening of January 28, 1895, plaintiff’s intestate boarded one-of defendant’s cars on Second avenue, near Twenty-Seventh street. Although there was ample room for him on the inside of the car, he wetit out on tile front platform, and there remained standing until the car reached Sixty-Third street, when he fell off, was run over, and received such injuries that he died about a week later. The theory of the plaintiff upon the trial was that the defendant was guilty of negligence causing the injury, in that the driver, without necessity for it, so suddenly applied the brake as to cause the car to give a violent jerk, which had the effect of hurling plaintiff’s intestate over the dashboard. The only evidence in support of this position was given by the witness Carroll, who testified that he was riding in the car, and that, “just about Sixty-Third street, this here driver, it was just as if he put the brake on, and then he let the brake out, and the car gave a good jerk; — what I would call a good one, anyhow; and after that I seen this man going over the dashboard. I seen him myself.” While the witness says he saw the intestate going over the dashboard, he does not testify that he saw the driver apply the brake, but asserts, instead, that the jerk which he experienced seemed to him as if the driver had put the brake on, and then let it off. Again he describes the jerk in the following language : “It was just as if there was a rock or something on the car track, or anything like that." We do not think this evidence was sufficient to authorize the jury to find that the defendant’s servant was guilty of negligence in applying the brake so suddenly and sharply as to cause plaintiff’s intestate■ to be hurled from his position on the platform.

We are also of the opinion that the plaintiff failed to sustain the burden resting upon him, of proving that plaintiff’s intestate was free from contributory negligence, within the principle established in the following cases: Clark v. Railroad Co., 36 N. Y. 135; Hayes v. Railroad Co., 97 id. 259; Connolly v. Knickerbocker Ice Co., 114 id. 108; 22 St. Rep. 675; Coleman v. Second A. Railroad Co., 114 N. Y. 612; 24 St. Rep. 566; Cassidy v. Atlantic Ave. Railroad Co., 9 Misc. Rep. 275 ; 61 St. Rep. 149. This is not a case where plaintiff’s intestate, by reason of the crowding of the car, was obliged to go upon the front platform. On the contrary, it conclusively appears that there was plenty of room on the inside of the car. No one was standing up in the car, and he could have had a seat, had he chosen to take one. Instead, he passed out upon the front platform,—a place obviously more dangerous at any time than the inside of the car, but especially so on this occasion, in'view of the slippery condition of the tracks, the storm, and the darkness, which made it probable that sudden stoppages of the car would occur. It was a cold night, the thermometer being only twenty degrees above zero; the tracks were icy and slippery; and it was snowing steadier during all of the time that he was upon the car. To the situation we have described, the language of the court in Coleman v. Railroad Co, supra, applies:

“The seats in railroad cars are provided for the-passengers to occupy. If, without reasonable cause, they leave the car, or place themselves on the outside of it, when in motion, they assume the hazards of so doing. ”

But in that case the plaintiff offered as an excuse that the seat which he occupied became so crowded as to render it uncomfortable for him to remain in it, and so he stepped down upon the step, which ran lengthwise of the car, for the purpose of going forward to take another seat, and while doing so was injured, and it was held that from this evidence the conclusion was permitted that he had reasonable cause for leaving his seat to obtain another. And continued the court, “ it is upon that assumption that he may be relieved from the charge of contributory negligence.” If in this case the car had been crowded so that it became necessary for plaintiff’s intestate to go upon the platform, there would have been permitted an excuse which would have made it a question for the jury whether he was free from contributory negligence. But the facts show no excuse whatever. He left an absolutely sale place to go into one more hazardous at all times, but especially so on the occasion in question. And it was necessary for plaintiff to prove something more than this act of carelessness in order to authorize a jury to find that the plaintiff had sustained the burden resting upon him, of showing that he was free from contributory negligence. The judgment should be reversed, with costs to the appellant to abide the event. ^

All concur.  