
    (88 Hun, 464.)
    FRANCISCO v. TROY & L. R. CO.
    (Supreme Court, General Term, Third Department.
    July 6, 1895.)
    1. Injury to Passenger—Contributory Negligence.
    It is not negligence, per se, for a passenger on a motor car to stand on. the front platform, holding on with both hands to the iron rod behind him, while the car is going rapidly over a road with curves in it, he having been directed by the conductor to stand there while smoking.
    2. Same—Negligence.
    Where a passenger on a motor car, who had been directed by the conductor to stand on the front platform while smoking, was, while holding on with both hands to the rail behind him, thrown off as the car went round a sharp curve, the question of excessive speed and the carrier’s negligence is for the jury; it being shown that the car was going at a high speed, which was not decreased at the curve, and passengers who were sitting down, as well as those standing up, having testified that the lurch of the car threw them on their knees. Mayham, P. J., dissenting.
    Appeal from circuit court, Saratoga county.
    Action by William Francisco against the Troy & Lansingburgh Railroad Company to recover damages for personal injuries. The complaint was dismissed, and plaintiff appeals.
    Reversed.
    For former report, see 29 N. Y. Supp. 247.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Isaiah Fellows, Jr., for appellant.
    Thomas S. Fagan, for respondent.
   PUTNAM, J.

This is an appeal by the plaintiff from a judgment of nonsuit. Evidence was given upon the trial from which the jury, if allowed to pass upon the questions involved in the case, could have found the following facts: Plaintiff, about 8 o’clock on the evening of January 31, 1892, at Waterford, boarded defendant’s car, running between that place and Cohoes. He was smoking at the time, and was directed to go upon the front platform by the conductor. He did so, and, at the time of the accident below mentioned, was standing on said platform, with both hands behind him, holding on to an iron railing in front of the window. There were several curves between Waterford and Cohoes, one of which, known as “Bush Curtis Corner,” was described as a sharp curve, turning from one street to another. The evidence showed that the night was dark. As the car of defendant in which plaintiff was riding approached the Bush Curtis corner, it was going at a high rate of speed, and did not slow up. As the car rounded the corner, going rapidly, it gave a jerk, throwing plaintiff off, onto the ground,, and injuring him. For this injury the action was brought.

The trial court, after the plaintiff had rested, granted a non-suit, for the alleged reason that he had failed to show negligence on the part of the defendant, and the absence of contributory negligence on the part of himself. On the first trial of the case, it was submitted to the jury, and plaintiff had a verdict. Evidence was offered by defendant, and a different state of facts appeared from what was shown on the trial now being reviewed by us. On the first trial, defendant proved that plaintiff, at the time of the accident, was standing on the step on the forward end of the car, on the right-hand side; that he had both feet on the step. We thought that it was contributory negligence for a passenger, while a car was in rapid motion, at a place where he knew there were sudden curves, to stand on the steps of a car, especially as there was room for him on the inside. But on this trial we have a different state of facts. The plaintiff’s witnesses only have been sworn, and it now appears that plaintiff, at the time of the accident, was standing on the platform, instead of the step. He had been directed to that place by defendant’s conductor. At the time of the accident, he stood on the said platform, as directed, with his two hands firmly grasping an iron railing behind him. Under the facts appearing on the present trial, that the act of plaintiff in standing on the platform was not negligence per se is well settled. Nolan v. Railroad Co., 87 N. Y. 63; Meesel v. Railroad Co., 8 Allen, 234; Railroad Co. v. Walling, 97 Pa. St. 55.

It was a question of fact for the jury, under all the circumstances, whether or not the plaintiff was free from contributory negligence. Nolan v. Railroad Co., supra; Hart v. Railroad Bridge Co., 80 N. Y. 622; Chisholm v. State, 141 N. Y. 246, 36 N. E. 184; Massoth v. Canal Co., 64 N. Y. 524-529. There are circumstances appearing from the testimony, referred to in the brief of the learned counsel for the respondent, from which the jury might have found contributory negligence on the part of plaintiff. But the facts so commented upon should have been submitted to and discussed before the jury. We are unable to determine, as matter of law, from the testimony produced by plaintiff, that he was guilty of contributory negligence. It was a case where the inferences from the facts should have been passed upon by a jury. It remains, therefore, to consider whether there was testimony in the case indicating negligence on the part of the defendant that should have been submitted to the jury.

It was satisfactorily shown that the car was going at a high rate of speed, and that such speed was not decreased while turning the Bush Curtis corner. At the turn the car gave a sudden jerk, and threw the plaintiff to the ground. The witness Spodden testified that the lurch of the car threw him on his knees. Wolf said it threw him against the door, his head striking it. Martin testified that, when the car went around the corner, there was a sudden jerk, and it threw him over on his knees, against the people oh the other side. Dunwoodie testified that he was sitting down, and that the lurch of the car at the time in question did not throw him very far, but it threw him upon his knees, so that his knees struck against the side of the car. Lewis said: “I fell forward, and, when I fell forward, I hung still tighter, and come back to where I was,” etc. We think the evidence of these witnesses we have referred to, and also the other evidence in the case, indicated that the defendant’s car went around a sharp curve, without at all slowing up, and at a high and dangerous rate of speed, and hence that there was evidence tending to show negligence on the part of the defendant which the trial court should have submitted to the jury. Werle v. Railroad Co., 98 N. Y. 650.

Coleman v. Railroad Co., 114 N. Y. 609, 21 N. E. 1064, cited by the learned counsel for respondent, is not a parallel case. In that action the plaintiff recovered a judgment. The accident to Coleman was caused by his leaving a seat on the car of the defendant, having platforms on each side of the seats, and going onto one of said platforms, and, while there, coming in contact with a column of the elevated road near which the defendant’s tracks ran. On the trial, defendant requested the court to charge the jury that if they believed “that the plaintiff left his seat unnecessarily and voluntarily, and while the car was in motion, without requesting the driver or conductor to stop the same, and went upon the side of the car, and swung himself outside of the line "of the step of the car, and, while so doing, came in contact with the column of the elevated railway, the defendant was entitled to a verdict.” The court declined to so charge, and for that error the judgment was reversed. It was properly held that if, without reasonable cause, the plaintiff left his seat, where he was safe, and went onto a platform on the side of the car, and came in contact with a permanent structure near defendant’s road, he could not recover. In that case he voluntarily, and without sufficient cause, took upon himself the risk of the accident. It will be seen that in the case referred to the facts were not at all like those in the one under consideration.

On the whole, we think this case presented questions of fact which should have been submitted to the jury, and hence that the judgment must be reversed, and a new trial granted,- costs to abide the event.

HERRICK, J., concurs.

MAYHAM, P. J. (dissenting).

On the former appeal we held that there was not sufficient evidence of the defendant’s negligence to authorize the submission of the "case to the jury. I do not see that the evidence on that branch of the case has been changed on this trial, and cannot therefore concur in ordering a new trial. Proof of defendant’s negligence in this class of cases is always a necessary prerequisite to a recovery.  