
    FREDERICK HADENCAMP, Plaintiff and Respondent, v. THE SECOND AVENUE RAILROAD COMPANY, Defendants and Appellants.
    When a person is received as a passenger and his fare taken, it is not negligence per se for such person to stand upon the front platform of a street car, provided there is no room for him elsewhere. '
    A carrier of passengers is bound to use all the care and prudence that human foresight can suggest to carry his passengers safely in the mode and manner he undertakes to transport such passengers. He is bound to furnish safe and comfortable vehicles, and comfortable and safe places thereon for the passengers. If a passenger, received as such, take and occupy as secure a seat or position as is open to him on the boat, car, or vehicle in which he is permitted to take passage, and is injured by the negligence of the carrier, the passenger is not chargeable with negligence for being in a more exposed position than other passengers, provided he conduct himself with ordinary care in the place where he is. Ordinarily, when the facts are undisputed, negligence is a question for the court, and should not be left to the jury.
    Before Barbour, C.J., Jones and Fithian, JJ.
    
      [Decided October 30, 1869.]
    This was an action to recover damages for injuries sustained by plaintiff in consequence of being thrown or falling from the front platform of one of defendants’ ears, under the wheels, and being so injured as to require amputation of one of his legs.
    On the trial before Mr. Justice Jones and a jury, the plantiff testified, in substance, among other things: That shortly after six o’clock p.m. of the 18th July, 1864, at the corner of First street and Second avenue, he got upon the front platform of one of defendants’ horse-cars for the conveying of passengers, for the purpose of riding to his residence on Thirty-fifth street; that the car was standing still when he got on, as they were changing horses; that the car was full of persons inside, so that he could not get inside, and there were persons also on the platforms outside. The rear platform was crowded, and there were four or five persons on the front platform. The plaintiff stood (as he says) on the front platform, with his back to the front of the car, with his hands behind him, holding on to a hand-rail across the front end of the car. After the car started, and while thus riding, the conductor came and took his fare as a passenger. That between Eleventh-and Twelfth streets the car ran over something on the track, by the shock of which plaintiff lost his hold, was throvm from the platform, and fell with one foot under the car-wheels, so that before he coxild arise both car-wheels ran over his foot and ankle, mashing it- so that amputation became necessary. That defendants were a corporation, and a common carrier of passengers for hire by means of a horse-railroad, xvas admitted. There was evidence that in the car there was a notice posted to this effect: “.All passengers must get on and off the rear platform, and must not get on or off when the car is in motion, or stand on the steps of the car.” There was contradictory evidence as to whether plaintiff saw this notice or not. He says he did not see it on this car, but had seen similar notices on other cars. There was evidence on the part of plaintiff tending to show that the front platform of the car was not in a good or safe condition, but was bent downward toward the track, so that it was more difficult to stand on it than if it were in good order and condition. Evidence on the part of defence was given to contradict this. It xvas substantially agreed, however, that the immediate cause of plaintiff’s being throxvn or falling from the place where he stood was the car running over some obstacle on the track.
    Evidence was given by the defendants to show that the car platform was sound, and in a good and safe condition for all purposes for which it was used, also that the defendants’ railroad track was in all respects safe and in good repair and condition ; and evidence tending to show that the obstacle on the track, the passing over of xvhich, it was claimed, had throxvn plaintiff from the car, was a stone of such small size as actually did, and might, without negligence, escape the attention of the defendants’ driver; and that plaintiff could not well be thrown off by such an obstacle without negligence on his part. And defendants gave further evidence tending to show that at the time of the accident plaintiff was standing upon the step of the front platform, and not on the platform itself.
    The proofs being closed, the justice charged the jury, among other matters hereinafter stated:
    First—“ That to entitle the plaintiff to recover, there must be negligence contributing to the injury on the part of defendants, without any negligence contributing to it on the part of the plaintiff.” That if defendants were free from negligence, or if there was negligence on both 'sides contributing to the injury, there could be no recovery. That the defendants were required to “ use all such means as human foresight and prudence can suggest for the preservation of the passenger, when carrying him according to the mode in which they undertake to carry him,” The justice left it to the jury to determine whether the injury was caused by a defective platform or running over a stone. That if the former, and the defect was known to the company, it was negligence. If by the latter, it was for the jury to say whether proper care was taken by the company to protect the passenger from such a cause.
    There were various requests to charge, and exceptions to the refusal, and exceptions to the charge as made, which are noticed in the opinion of the Court. There was a verdict for plaintiff. A motion was made at Special Term for a new trial, which was denied. Judgment was entered upon the verdict. The defendants appealed from the judgment ánd order.
    
      Mr. John Slosson for appellants..
    The verdict is against the weight of evidence, and the judge at Special Term should have granted a new trial.
    It was negligence in the plaintiff to have put himself and to have remained in that precarious position on the step, especially as he swears himself that the platform “ was bent down when he got on.” If was a rash, foolhardy thing to be done. It was contrary to the rules of the company, which he knew, or was chargeable with the knowledge of. He was not sent there by the conductor, as was the case in Sheridan v. Brooklyn City R.R. Co. (36 N. Y., 39).
    The motion for a nonsuit should have been granted when the plaintiff rested. After the defendants’ proof was in, the complaint should have been dismissed.
    It was error in the judge to admit in evidence the declarations of Hoffman to the driver. Hoffman was not the plaintiff, and these declarations were made before the accident happened, and were not evidence of the fact of the injured condition of the platform, and could in no respect bind or affect the defendants.
    The Court erred in refusing to charge that, if the stone upon the track was of such a small size as to escape the observation of defendants’ driver, the defendant was not guilty of negligence in driving over it; that the plaintiff must affirmatively make out his case—-unless he does so, there can be no recovery; that it was negligence on plaintiff’s part if, contrary to the rules of defendants, he stood upon the platform.
    All that part of the charge which left to the jury to determine whether taking fare from the plaintiff extended over him, while standing on the platform or step, the protection which the company were bound to extend to an inside passenger, was erroneous.
    
      Mr. Ira Shafer for respondent.
    The plaintiff’s negligence did not contribute to produce the injury in judgment of lam, and the motion for a nonsuit on that ground was properly denied. The evidence showed a clear case of negligence on the part of the defendants, when the plaintiff rested. The plaintiff’s standing on the platform, or on the steps thereof, was not joer se negligence (6 Duer, 383 ; Willis Case, 32 Barb., 402; Willis Case, 34 N. Y., 670).
    Hone of the exceptions to the admission or rejection of evidence were well taken. Hotice to the driver of the condition of the platform of the car was clearly admissible. The motion for a nonsuit was properly denied; there was no negligence on the part of the plaintiff, contributing to the accident; the defendants’ negligence was clearly established when the plaintiff rested, and afterwards by the other evidence; the judge committed no error in his charge to the jury, or in his refusal to charge as requested; no error was committed in the admission or rejection of evidence; and the damages are not excessive (Collins v. Albany and Sch. R.R. Co., 12 Barb., 492, 499).
   By the Court:

Fithian, J.

In the progress of the trial in this case, a witness on the part of the plaintiff testified that when, or at the place where, plaintiff got upon the platform of the car, there was a change of horses, and that the (¡earn there fastened to the car became unmanageable, and so acted as to break or damage the front platform of the car, and render it insufficient to support the weight then and afterward suffered to get upon it. This witness was permitted, under objection from defendants’ counsel, to state that he called the attention of the car driver to this injury, and told him that he “ would have to get a new platform before he could get up, for that one was in a bad condition.” This evidence was excepted to by defendants’ counsel, on the ground that it was the declaration of a third person, for which defendants were in no way responsible. I am of opinion this exception is not well taken. It was certainly proper and material for the plaintiff, if he could, to prove that the platfrom was in a bad and unsafe condition, and that that contributed to the injury. And it was equally proper and material to bring notice of that defect to the defendants’ agent, the driver. True, this statement did not of itself prove the fact of any defect in the platform, but the same witness had before sworn positively to its bad condition. The declaration was proper by way of notice to the company.

By orders of defendants, it was the duty of car conductors, when an accident happened, to make immediate report thereof to the superintendent. The conductor in this case made such report, which was offered in evidence by the defendants and excluded. This ruling was correct. The report was an ex parte declaration made by the defendants, not in the presence or hearing of plaintiff, and to the correctness of which he in no manner acquiesced. Allowing such statements in evidence would he permitting a party litigant to manufacture testimony in his own behalf by his own unsworn and ex parte statements.

The defendants’ counsel, at the conclusion of the charge, requested the justice to charge that if the stone upon the track was of such small size as to escape the observation of the driver, it was not negligence to drive over it. The justice declined to charge in these words, and I think correctly. The court had already charged the jury that if they should find that the plaintiff was thrown from the car in consequence of its running over the stone, and he was not guilty of negligence in standing where he was at the time of the accident, then it was for the jury to say, upon the evidence, whether the defendants exercised all the care that was requisite to carry the plaintiff safely. This in effect left to the jury all questions in respect to the alleged obstruction on the track, whethef there was any such obstruction, and if so, what it was, and how large, and whether it was negligence not to have seen and removed it. The defendants were permitted to obtain, if they could, the verdict of the jury in their favor, not only on the facts, but the conclusion as well. If there was any error in this respect, it was in favor of the defend' ants. If plaintiff had so requested, it would have been the duty of the judge to have charged that, if the jury found the plaintiff was thrown from the car by reason of its running over an obstruction on the track, sufficient to produce the concussion or shock sworn to by plaintiff’s witnesses, the existence of such an obstruction, and colliding with it, was negligence on the part of defendants.

The principal questions discussed on the argument, however, were whether the plaintiff was or not free from negligence on his part, and whether the justice at the trial erred in his charge, and refusals to charge as requested by defendants’ counsel, on this subject. The defendants’ counsel requested the justice to charge, in substance, as follows: 1st. That if the jury should find plaintiff was standing upon the steps of the car at the time of the accident, he could not recover. 2d. If the defendants had knowledge of th^ notice to passengers posted inside the cars, then he could not recover. 3d. It was negligence on the part of the plaintiff if, contrary to the rules of defendants, he stood upon the platform. The justice refused to charge in these respects other than he had already charged. He had and did charge in these respects in various forms of expression, but substantially as follows: That the jury must ascertain in what way this company undertook to carry passengers, whether seated inside, or both seated and standing inside only, or whether it undertook to carry inside and out, and on the platform, wherever the passenger could find sitting or standing room.” If the former only, then the company was bound to such care only as was sufficient to prevent an inside passenger from being injured; and in such case, if the ■ jury shall find the accident was not such as to harm an vnside passenger, there was no negligence on the part of defendants sufficient to entitle plaintiff to recover, unless the conductor, by the act of' taking fare from the plaintiff, extended the contract of the carrier to the postion in which the plaintiff stood at the time he paid his fare; and that the jury must come to the conclusion that the contract was so extended, in order to justify a verdict for the plaintiff.”

And further the justice charged: I shall charge tiffs- proposition to you: H you find that this injury occurred to the plaintiff by reason of his standing upon the front platform, or on the step of the front platform; that it would not have occurred to him if he had not been standing there ; that his standing, there was an act of negligence on his part; and that taking his fare from him while he was standing in that position did not extend to him the same protection which was given to the passengers inside of the car, or, in other words, did not relieve him from the responsibility which would otherwise have rested upon him in conse-: quence of his own negligence in standing where he did, you will have to find a verdict for the defendants. " If, on the other hand, you find that there was no actual negligence on the part of the plaintiff in standing on the front platform, or the steps of the front platform, whichever it was, or, if there was actual negligence, the conductor, hy taking his fare, deprived it of that character, and extended over the plaintiff the same right to protection as was enjoyed hy inside passengers, you will then proceed to inquire whether defendants were guilty of negligence,” &c. And in conclusion, and by way of reiteration, the justice charged: “ I will conclude by again calling your attention to the salient points presented by the testimony, which are: That the defendants are bound to use all the care and prudence which human sagacity and foresight can suggest, for the purpose of preventing injury to their passengers, carried in the way in which they undertake to carry them. That is the first general proposition. The second is to ascertain in what manner the defendants undertook to carry their passengers, whether inside the walls of their cars, or inside of the walls and outside on the platform, indiscriminately. If they only undertook to cany them inside of the walls of their cars, then they are only required to use that prudence and foresight which are necessary to prevent injury to their passengers so inclosed within those walls. If you so find, you will render your verdict for the defendants ; that is, if you find that they used such foresight and prudence as I have mentioned, as the law thus laid down requires from them, to prevent the occurrence of an accident to a passenger inside of the car; unless you also find that the conductor of the car, by taking fare from the plaintiff, standing where he did, cast over him by that act the mjis of the law, giving him the same protection as was given by law to the passengers who were inside of the car. If by that act the conductor did extend to the plaintiff that protection, the defendants were bound to use such care and prudence as human foresight and sagacity could suggest, to prevent such an accident as this from inflicting an injury upon a passenger standing where the plaintiff stood.”

These portions of the charge were excepted to'by defendants’ counsel, and it was contended on the, argument that the justice erred in leaving it to the jury to determine any thing in respect to the character of the contract of passage between plaintiff and defendants, or the act of taking fare by the conductor, and that the justice should have charged as matter of law that standing upon the front platform, or the steps thereof, was of itself negligence on the part of the plaintiff; or if not, then if knowledge of the notice to passengers posted inside the car was brought home to plaintiff, that made it negligence in plaintiff to get on or stand on the front platform.

I am clearly of opinion that if there was any error in the rulings of the justice in these respects, it was an error in favor of the defendants. Questions of negligence being always, when the facts are in dispute, mixed questions of law and fact, it is difficult, in the hurry of a trial at nisiprius, clearly to discriminate between those elements of the question which are purely legal, to be determined by the court, and those which are matters of fact or conclusions of fact, to be determined by the jury. So, in this case, the justice submitted to the jury several matters which I think he should have decided as matters of law, in favor of the plaintiff. The case of Clark v. Eighth Av. R.R. Co. (36 N. Y., 135) is, in most respects, analogous to this case. There the plaintiff stood upon the steps of the front platform, the car being so crowded that he could not procure a safer position. He was permitted to stand there by the driver, and the conductor received his fare while thus standing. The Court of Appeals held that under such circumstances it was not negligence in the plaintiff thus to stand; and having been injured by the fault of the defendant while there, he could recover.So, in the case of Edgerton v. The Harlem R.R. Co. (39 N. Y., 227), the plaintiff took passage and paid fare in a caboose ” car, attached to the end of a freight train, concededly not an ordinary passenger car, nor used for carrying passengers, and not as strong or as safe as the cars used exclusively for carrying passengers on the regular passenger trains. The plaintiff was injured while in this caboose,” by its being thrown from the track, and partly broken in such a manner as would not , probably have occurred to a stronger and heavier passenger car. It was objected by the company that it was negligence in the plaintiff to take passage in that car; that he had not, therefore, the rights of a passenger, and rode at his peril. The court held otherwise; that, the servants of the company having received the plaintiff in the car and taken his fare, he was entitled to all the rights of a passenger, and the company were bound to carry him as safely as if in their ordinary passenger cars. That is, the company were bound to take such care as that the passenger should by no means sustain injury through any fault or neglect of theirs, and, if he was so injured, négligence could not be imputed to him for being where he was. Applying these principles to the ease at bar, the justice would have been well warranted in charging the jury as matter of law (waiving for the present the question as to the notice posted in the car) that, upon the undisputed facts in the case, it was not negligence in the plaintiff to stand upon the front platform, or the steps / and that, notwithstanding the position of the plaintiff on the car, the company were bound to carry him as safely as any inside passenger; or, in other -words, the company insured him against sustaining any injury from any fault or neglect of theirs. And that is all that is required of them as to an inside passenger. I say, upon the undisputed facts of the case; for it is not questioned by either party that plaintiff was permitted to get and remain on the front platform or steps, that his fare was collected while there, and that the car was - so crowded' that he could not get any safer place. If the justice at the trial had thus ruled, it would have excluded from the consideration of the jury, to the prejudice of the defendants, all question as to plaintiff’s negligence. The defendants, however, were permitted to go to the jury on these questions, and have the eha/nce of a verdict in their favor on them. If that was error, defendants cannot be heard to object.

The remaining question is, whether there was any error, to the prejudice of the defendants, in the refusal of the judge at the trial to charge, as requested, as to the notice to passengers posted inside the car. The justice declined to charge that this notice oi itself, even if known to the plaintiff, rendered the act of getting and standing upon the front platform negligence on the part of the plaintiff. I am of opinion this ruling was correct. The notice contains a mandate and a'prohibition, and neither one expressly includes the act in question here. The mandate is, that “ passengers must get oil and off' the rear platform.” The prohibition is, that they “ must not get on or off when the car is in motion, or stand on the steps.” • This is as much a command to the employes of the. company as to the public j and it will be observed that, while this notice requires passengers to get on and off at the rear, it does not forbid them getting on or off elsewhere, and its phraseology, in confining the prohibition as to standing to the “ steps” alone, is tantamount to an express permission to “ stand” anywhere else on the car. How, it was not the mere act of getting on at .the front that in any manner contributed to the injury to plaintiff in this case, dr exposed him to danger; it was remaining there after he was on, and that act was in no manner forbidden by the notice. But aside from this, even if the court must shut its eyes to the open, constant, everyday practice of the employés- of street railways themselves. in disregarding such no.tices, there is abundant evidence in this case that the employés of the defendants’ company do constantly and habitually disregard and disobey this notice, and so do with the consent and apjDarent encouragement of the company itself. The conductor testifies in this case that on this, occasion both platforms and the inside of the car were so full that no more could get on; that there were nine or ten persons on the front-platform, and no more could get on. And, speaking of his ordinary custom, he says he never paid attention to where or what place passengers got onbut when I see. them get on, I put for them to get their fare”'-—as well on the front platform as elsewhere—“ from the last one that gets on.” And this habitually, and, as the defendants-would have us believe, in the face of their-own rules to the contrary. Surely they cannot complain if ,the court and jury construe their rules and notices in the same manner and meaning that their own officers and employes habitually do, nor can they expect the court to enforce rules which they habitually disregard in their own interest, and seek to enforce only when they could thereby shield themselves from liability. This would seem to be sufficient grounds upon which to sustain the ruling of the judge at circuit. But I am prepared to go further, and hold that when a common carrier of passengers, by himself or his manager or conductor, accepts a person as a passenger, and receives from such person the full and established fare, without any restriction in the contract itself as to mode or place of carriage, he is bound to furnish such passenger with a safe and comfortable vehicle, and a safe and comfortable place or position in it or on it, and so to transport that passenger that he shall not sustain injury from any fault or neglect of the carrier, any rule, notice, or regulation of the carrier to the contrary notwithstanding; and is responsible for any injury the passenger may sustain by the fault or neglect of the carrier, provided always the passenger shall occupy as' safe a place as he can, and conducts himself with proper care in the place where he is. Of course, if the passenger wilfully and unnecessarily persists in taking and occupying an exposed or dangerous position on the boat, car, or vehicle by which he is being carried, when more secure and unexposed places are open and offered to him, and he is injured by an accident which would not have harmed him if he had been in the safer position, then it is negligence in him, and he takes the risk of such exposure. But if the passenger has no option, and occupies as safe and secure a position or place on the carriage as the, carrier affords to him, and conducts himself with ordinary care while there, negligence cannot be imputed to him, and he can recover for any injury sustained through the fault or neglect of the carrier. Those are well-settled elementary principles of the common law as to carriers of passengers (1 Parsons on Contracts, 2d cd., p. 695 to 700, and notes; Storey on Bailments, sec. 590 et seq.; Angel on the Law of Carriers, chap. 11). In applying these principles to the various and generally different classes of facts in particular cases, courts may and do differ, but I think the principles above stated have been uniformly acquiesced in. In this case, the judge at the trial submitted to the determination of the jury all the questions of negligence of the plaintiff. It was left to the jury to say, upon all the evidence, whether the plaintiff was guilty of negligence contributing to the injury. The substance of the objection of defendants’ counsel is, that the justice should have charged as matter of law that plaintiff was guilty of negligence in being where, he was when the accident occurred. In my opinion, for the reasons before stated, upon the undisputed facts in the case he should have charged the other way. And inasmuch as the jury have found as the justice should have ruled, I see- no reason for disturbing the verdict. The judgment should be affirmed, with costs.

Barbour, C.J.

(dissenting). __ The obligations and liabilities of common carriers of goods differ essentially from those of carriers of passengers; for, while the former are bound to carry the property safely to its place of destination, unless prevented from so doing by some act of God or of a public enemy, and, to that extent, may therefore be said to be insurers of the goods, the latter are liable, in actions of this character, only for such injuries to the persons transported by them as are occasioned by their doing, or omitting to do, some act which careful, prudent men, of good judgment and competent skill in that business, and having a due regard for the safety of the persons of others, would' not have done or omitted; nor even then, unless such injpry is wholly caused by the negligence of the carriers, or that of their' servant. If the carelessness of the passenger contribute to the accident which occasions the injury, his carrier is thereby exonerated from liability.- The reason for the distinction between these two classes of common carriers is found in the fact that, in the one case, the property carried is wholly within the care and custody and under the- exclusive control of the carrier for the time being; while,in the other, the passenger retains the management and control of his own person, upon or within the vehicle in which he is transported, and is therefore bound to exercise such caution and care for his own protection as a prudent, sensible man would exhibit in the same position.

Negligence,per se, cannot properly be imputed to a passenger upon a street-railroad liorse-car, merely because he is riding upon one or the other, of the platforms, nor to the railroad proprietors for carrying him there; although, there can be no doubt, it would be safer for the passenger within the body of the car. There are degrees of danger, as of negligence; all are comparative. bio place between the cradle and the grave is wholly safe from accidents. One who is within a street-car is less exposed to danger than another who stands upon the platform; while a man in 1ns own house may be safer than either. It may probably be assumed, too, that a passenger upon a ship or steamer at sea, or on a train of cars propelled by a locomotive engine at the rate of thirty or fifty miles an horn*, is in greater danger than is a passenger upon even the front platform of a street-railroad car. But it would be contrary to reason to say that the occupying of a seat in a locomotive train, or a berth in a ship, or a standing place upon the front platform of a street car, is of itself, and unqualified by other circumstances, such an act of negligence on the part of a passenger as will exonerate the candor from liability for an injury caused by his own negligence. Indeed, the fact, which is within the knowledge of all of us, that many thousands of our most careful,-prudent, and sensible men do thus travel daily and repeatedly, is conclusive evidence to the contrary.

Assuming, then, as we may, that the standing of a passenger upon the platform of a street car is not, on his part, negligence per se, it is, at least, equally as clear that the carrier is not guilty of negligence merely because he permits such passenger to stand there. That which is negligence in the one must be negligence in the other; provided both have the same knowledge in regard to the danger.

But it is a matter of. common knowledge and common-sense, and must, therefore, be considered as an established fact in this case, that it is more dangerous to stand upon the crowded front platform of a street cpr than to occupy a place .within it; and that fact, it appears to me, all passengers are bound to understand. In this case, certainly, the person injured must have been aware of the extra danger, for he had been in the habit of travel-ling upon such cars for many years. He therefore voluntarily took his place upon the platform with full knowledge of the hazard he incurred, and thereby assumed to himself the risk consequent upon his own negligence in so doing, whatever it may have been.

The condition of such a passenger is totally unlike that 'of one upon a locomotive train in motion, who cannot leave the same because of the extreme danger, and is forced to take the platform as the safest proper place left to him, because there is no room for him within the cars; for a person desiring to take passage upon an approaching street car can see at a glance whether it is or is not so full as to prevent his riding inside; and if he does not choose to look, his ignorance will be that kind of orassa ignorwntia which excuses no man. Or, if he has misjudged, and finds, when upon the platform, that the interior is full, he may require the conductor to stop the car, and alight therefrom.

For these reasons, it appears to me, the defendants were not bound to extend to the passenger the same protection upon the platform as if he was within the car, even though his fare was paid, nor any protection, indeed, beyond that which pertained to the position such passenger had himself voluntarily selected or taken ; and it follows, in my opinion, that the submission to the jury of the question whether the payment of such fare did not entitle the platform passenger to the samp protection that was given, to' inside'passengers, was erroneous, and probably tended to the injury of the defendants. Indeed, I cannot perceive why the payment of the fare changed the relative rights of the parties to apy extent. We all know that persons desiring passage upon cars of this description step on to them whenever they please, and thus become passengei's, and entitled to protection as such, whether the conductor has yet collected his fare or not. If that were otherwise, carriers might relieve themselves from liability for a portion of the journey by abstaining from collecting the fare. Because of that misdirection, and without passing upon any further questions, I am of opinion that the judgment should be set aside, with costs, and a new trial ordered.  