
    Samuel Moskowitz, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    
      Negligence—duty of a railroad company lo a passenger riding upon the step of a* crowded car.
    
    In an action brought to recover damages for personal injuries it appeared that the plaintiff boarded one of the defendant’s street cars in a country district; that the car was so full of passengers that the plaintiff was obliged to make-the journey standing on the step.
    The plaintiff testified that while the car was in motion it “gave a jump and throwed me off.” "This car *** got agoing very fast — just like it. always runs there; they run fast out there in the country and this car was. running along just like they all run * * * and I was hanging on therewith my two hands onto this rail. * * * All at once the car gave a jump and then I fell off. I couldn’t state exactly whether it jumped upwards or jumped ahead, but I know I fell off. After I fell the car stopped; it was still going as fast as it could. I didn’t say that it jumped ahead. She didn’t jump-sideways, she jumped up and down, I suppose, kind of going like this (illustrating), something like a greyhound running.”
    It was not shown that the greyhound motion testified to by the plaintiff was-unusual or abnormal or due to any unusual condition of the car or its management, the rails or roadbed, nor did it appear that the motion which threw the-plaintiff from the car was a departure from the continued oscillation to which, the plaintiff testified.
    There was no evidence that the speed was unusual or was in excess of that permitted by law.
    
      Held, that the plaintiff’s complaint was properly dismissed:
    That it was incumbent upon the defendant to exercise a high degree of care for-the plaintiff’s safety, but that this obligation did not insure the plaintiff against the risks ordinarily incident to his position on the car and due to the jolts and. jars natural and normal to the progress of the car when its rate of speed wa& not shown to be unlawful or negligent per se.
    
    Hirschberg and Woodward, JJ., dissented.
    Appeal by the plaintiff, Samuel Moskowitz, from a' judgment of the Supreme-Court in favor of the defendant, entered in the office-of the clerk of the county of Kings on the 17th day of June, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      Robert H. Roy, for the appellant.
    
      I. R. Oeland, for the respondent.
   Jenks, J.:

The plaintiff showed an accident, but he did not prove actionable negligence. I think that while riding upon the step of the car he, in the language of Cullen, J., assumed “ the risk ordinarily incident to such a position from the jolts and jars of the moving car., the unevenness of the track and the turning of curves.” (Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13, affirmed.) (See, too, Ayers v. Rochester Railway Co., 156 N. Y. 104; Francisco v. Troy & Lansingburgh R. R. Co., 78 Hun, 13.)

The plaintiff boarded the car at the corner of Richard and Myrtle avenues in Glendale where the territory is “ free ground — almost farms.” The car was then so full of passengers that he was compelled to stand upon the step and, so standing, to ride. He testifies that the car, while in motion, gave a jump and thro wed me off,” but on cross-examination he expatiated: “This car * * * got agoing very fast—just like it always runs there; they run fast out there in the country and this car was running along just like they all run .* * * and I was hanging on there ' with my two hands onto this rail. * ' * * All at once the car gave a" jump and then I fell off. I couldn’t state exactly whether it jumped upwards or jumped ahead, but I know I fell off. After I fell the car stopped; it was still going as fast as it could. I didn’t say that it jumped ahead. She didn’t jump sideways, she jumped up and down, I suppose, kind of going like this (illustrating), something like 4 greyhound running.” There is no other evidence as to speed or motion, and there is no evidence that any other person noticed unusual speed or motion, or that any passenger other than this plaintiff was affected by them.' It is thus evident that the plaintiff knew of the usual speed of the cars in this neighborhood'.; that this car was going only. at. the usual rate and that he must travel while standing upon the step. He also testifies that when he fell or was thrown off the car did not depart from a motion that was then constant.. For he says that it neither jumped ahead nor sideways, i. e., there was neither sudden jerk nor sudden aberration ; the car simply jumped up and down like a greyhound running ; i. e., the motion was a continued oscillation or continuous rocking of the car as it sped along. It is not shown that this motion was unusual or abnormal or due to any unusual condition of the car, rails ■or roadbed, or of its management, so we cannot assume aught but that a car traveling at that rate naturally developed such motion. As the plaintiff has neither proved nor attempted to prove anything peculiar, we may then go a step further to assume that the accident was due to the continuous and normal jolting or jarring of the moving car (the greyhound motion), incident to its headway. But this was the risk which the plaintiff assumed, as was said in the Dochtermann Case (supra). And so it is not shown that there was any omission or commission pointing to legal neglect on the part of the defendant. Of course, it may be said that if the car had not gone so fast it would not have developed the “greyhound” motion. But, as I have said, there is no evidence that the speed was unusual (but the contrary), or that the speed was unlawful. And it was not incumbent upon the common carrier of passengers, when the plaintiff placed himself upon the step of the car, even though it permitted him to ride there as a paying passenger, to reduce the speed of its car from its usual and presumably lawful rate so that it might lose its then natural oscillation. I think that the learned trial court (White, J.) rightly dismissed the plaintiff. An examination of the cases cited in support of a reversal (McGrath v. Brooklyn, Queens Co. R. R. Co., 87 Hun, 310; Hassen v. Nassau Electric R. R. Co., 34 App. Div. 71; Brainard v. Nassau Electric R. R. Co., 44 id. 613 ; Henderson v. Nassau Electric R. R. Co., 46 id. 280; Lucas v. Metropolitan Street R. Co., 56 id. 405 ; Clark v. Eighth Avenue Railroad Company, 36 N. Y. 135; Ginna v. Second Avenue Railroad Co., 67 id. 596; Nolan v. Brooklyn City de N. R. R. Co., 87 id. 63 ; Graham v. Manhattan R. Co., 149 id. 336; Hastings v. Central Crosstown R. R. Co., 7 App. Div. 312; Dillon v. Forty-second Street R. Co., 28 id. 404) shows an essential difference, not only in the facts, of course, for all cases thus differ, but in the essential fact which brought home negligence to those defendants and which fact respectively has no similar basic fact in the case at bar. But instead of paragraphic comments upon each.case, perhaps-I may thus more briefly indicate the discriminations: In McGrath'scase the accident was due to speed which produced violent and unequal motion. This was established by several witnesses, and people-were shaken around and off their seats. In Hassen's case the motor man should not have applied excessive motor power suddenly so as to-cause a sudden violent jerk. In Henderson's case the driver should not have driven his car so as to cause violent contact between the passenger and the van on the highway. In Lucas' case, when the driver intended to turn a curve at “ terrible speed,” the passenger should, have been warned at that point that he must increase his caution. In G leurlc's case the driver could. have stopped in time to avoid imminent collision and should not have driven on into danger. In. Ginneds case the switch was left open so that the car ran off upon it, producing a violent jolt or shock. In Holan's case the driver should not suddenly have whipped one of the horses so that it-plunged terribly under the blow, first forward arid then to one side. In Graham's case the defendant should not have disobeyed the-statute as to gates and the closing of them, nor should its servant have conducted himself so as to cause the crowd to sw;ay and jostle-the plaintiff so that he must grasp the railing, and hence suffer injury. As Martin, J., says: “ Even if the plaintiff assumed the ordinary risJc which attended riding upon the platform, he had aright to assume that the defendant’s servants would cause no unusual disturbance of the crowd, and that the cars were so constructed as-not to render his position dangerous from their proximity to each, other in passing over any portion of the road, or at least if such, danger existed that he would be apprised of it.” In Hastings' case: the driver should riot have given the horse a sudden blow with the-whip, which caused him to plunge forward so as to carry the car off" the track. In Dillon's case the driver should not have driven the car at a rapid rate when he struck the temporary turnout with violencé.

I have attempted thus to indicate the salient feature which, to the minds of the courts respectively, warranted submission of these cases to the jury. JBut where can I find the corresponding act or oniission. for a basis of negligence in the case at bar ? For I find upon the evidence "nothing but a natural motion, constant and incidental to the ■usual speed of cars in that vicinity, which is not shown to be unlawful, and which was well known to the plaintiff, for does he not say -that the car traveled as all other cars ? It must be kept clear in mind that the plaintiff does not testify to a sudden lurch or jump, but lie almost immediately describes the expression “ all at once the ear gave a jump and then I fell off,” by saying, “I couldn’t state exactly whether it jumped upwards or jumped ahead, but I know I fell off. ■* * * I didn’t say that it jumped ahead; she didn’t jump sideways ; she jumped up and down, I suppose, kind of going like this (illustrating) something like a greyhound running.” The plaintiff then defines his own word, and to my mind does not intend to -describe any sudden or abnormal motion of the car, but simply the jumping up and down, the oscillation — the “ greyhound ” motion — incident to and constant with the' “ going ” of the car at that rate of ;speed, which was continuous while the plaintiff was upon the car.

I do not understand the rule to be that there is any implied assurance that the car will be run so as to make it safe in the sense that .such assurance is insurance, but that the obligation is that of a high degree of care, and I do not believe that this obligation assures the plaintiff against the risks ordinarily incident to his place, due to the jars and jolts natural and normal to the progress of the car, when its rate of speed is not shown to be unlawful or negligent per se. I think that the plaintiff cannot be heard to say, I was thrown off the car ; therefore, the rate of speed was negligence,” and so insist that he has thereby given some proof of actionable neglect. (Francisco v. Troy & Lasingburgh R. R. Co., supra.) I do not construe the language of the JDochtermann case in any sense to the contrary. In the sentence : “ Now, while it is not negligence per se to stand on the platform of a street car, it is but fair and reasonable that the person so riding should assume the risk ordinarily incident to such a position,” etc., I think that the expression “ so riding ” uefers to a person standing on the platform, and as thus standing riding on the platform, i. e., that the force of so ” is confined to this sentence, and does not refer to the prior sentence so as to relate only to a person voluntarily and without necessity riding on the platform. Moreover, it may be said that this plaintiff voluntarily rode there. He exercised his free will when he chose to take the only position which was open to him. There was necessity for riding there if lie wished to travel in that particular car, but, nevertheless, he voluntarily became a passenger in it. Finally, the plaintiff was not riding on a platform, but on a step, which the Court of Appeals in Nolan’s Case (supra) say was “a position palpably more, dangerous than riding on the platform.” Indeed, in Francisco v. Troy & Lansing-burgh R. R. Co. (supra) the court say that the court in Nolns case held clearly by implication that such a position was negligence per se.

The judgment should be affirmed, with costs.

Goodrich, P. J., and Bartlett, J., concurred; Hirsohberg, J.,. read for reversal, with whom Woodward, J., concurred.

Hirsohberg, J,.(dissenting):

I dissent from, the decision of the court in this Case as I think a, question was presented by the plaintiff’s evidence for submission to-the jury. The plaintiff was received by the defendant as a passen- • ger on one of its closed cars which was crowded' at the time, and which was coming to Brooklyn, but which was stopped in order to-enable him to get on at the corner of Richard and Myrtle avenues in Glendale. It was so crowded that he could only secure footing upon the step, and he stood there holding on by the car handle with both hands until, while running very fast,, the car, to use his language, gave a jump and throwed me off.” On cross-examination he said the car was going “ very fast—just like it always runs there; they run fast out there in the country, and this car was running along just like they all run — just about as fast, and I was hanging on there with my two hands on to this rail. I do not fémember anything about my hat slipping and my making a grab for my hat; I am sure no such thing happened. All at once the car gave a jump and then I fell off. I couldn’t state exactly whether it jumped upwards or jumped ahead, but I know I fell off ; after I fell the car stopped. It was still going as fast as it could. I didn’t say that it jumped, ahead. She didn’t jump sideways; she jumped up and down I suppose; kind of going like this (illustrating); something like a greyhound running.”

There was no evidence to the contrary and the nonsuit is based necessarily upon the theory that the common carrier who invites a passenger for hire to occupy a precarious position upon the' step owes him no duty of unusual or extra care, but may injure him without liability provided it is done by running in the usual way,, notwithstanding the existence of conditions which may be presumed to be unusual in the absence of proof that the defendant’s cars are always overcrowded, or that positions on their steps are always sold. The law should be otherwise, and should require such a passenger to-be carried with that degree of care which will make his position reasonably safe. A sudden lurch or jump of the car or a speed which makes it impossible for him to hang on constitutes some evidence of the lack of such care. I think the authorities are to that effect, and that while no negligence can be imputed to the plaintiff as matter of law it can neither be said as matter of law that the defendant discharged its full duty in taking the plaintiff’s fare and then throwing him off from his perilous perch. In affirming a judgment recovered under somewhat similar circumstances in McGrath v. Brooklyn, Queens Co. R. R. Co. (87 Hun, 310) the General Term in the first department said (p. 314): “ The evidence in the case justified the jury in finding that in consequence of the crowded condition of these cars the passengers were compelled to ride upon the 'steps, and that they had been accepted as passengers in such a condition of the cars, and that notwithstanding the dangerous position in which these passengers were undoubtedly placed, the cars were run at a high rate of speed and the deceased was thereby shaken offl”

In Hassen v. Nassau Electric R. R. Co. (34 App. Div. 71) this court held that a passenger who was permitted to ride upon the running board of a car, and who was thrown off by a sudden jerk, could recover; that it was not negligence per se to ride upon the running board, and that the jerk was sufficient evidence- of negligence under the circumstances. The court said (p. 74): “ The defendant had accepted the plaintiff for carriage, it collected his fare and knew the place he occupied upon the car. It was bound to know that the application of motive power in such manner as to cause the car to give a violent jerk was extremely hazardous, in view of the position of many of the passengers upon the car, and might result in injury. The jury were, therefore, authorized to say that it was a negligent act. (Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13; Schuefer v. Union Ry. Co., 29 id. 261.) ”

The same principle was enforced by this court in Brainard v. Nassau Electric R. R. Co. (44 App. Div. 613), with the additional holding that, under the circumstances of this case, it is fair to assume that the passenger who is placed in a dangerous position is availing himself while there of such means as are provided for his security.

In Henderson v. Nassau Electric R. R. Co. (46 App. Div. 280) "this court expressly held that where the defendant accepted passengers standing upon the running board, it was chargeable with notice of the risks incident to their position, and that it was the duty of those occupied with the operation of the carato exercise great care to see that injury is not inflicted upon such passengers. To the same -effect is the earlier decision of this court in Wood v. Brooklyn City R. R. Co. (5 App. Div. 492).

In Lucas v. Metropolitan Street R. Co. (56 App. Div. 405) the Appellate Division in the first department has since gone still farther, and has laid down the salutary doctrine that a street railroad company which permits a passenger upon, one of its cars, who is unable to obtain a seat, to stand upon the front platform and there collects his fare, is obliged to exercise extraordinary care to transport him to his destination without injury.

'See, also, Sheeron v. Coney Island c6 Brooklyn R. R. Co. (78 App. Div. 476), where it was expressly held by this court that under similar conditions in effect to those herein presented the case should be submitted to the jury.

•In Ciarle v. Eighth Avenue Railroad Co. (36 N. Y. 135) the Court ■of Appeals held that while riding on the platform of a street car was prima facie evidence of negligence, the presumption was rebutted on showing the car and platform to be full of passengers, with no room for more; and that the conductor called for and received fares from such passengers. The court further held, as per the head note, that “ Such fact warrants the jury in finding that the plaintiff had been invited by those having charge of the car to ride in that place, and that ,an implied’ assurance had been given that it was a suitable and safe place to ride.” (See, also, Francisco w. Troy c& Lansingburgh R. R. Co., 88 Hun, 464; Miles v. King 18 App. Div. 41; Grotsch v. Steinway Ry. Co., 19 id. 130; Schaefer v. Union Ry. Co., 29 id. 261; Dochtermann v. Brooklyn Heights R. R. Co., 32 id. 13; Eberhardt v. Metropolitan Street R. Co., 69 id. 560; Ginna v. Second Avenue Railroad Co., 67 N. Y. 596; Nolan v. Brooklyn City & Newtown R. R. Co., 87 id. 63; Bartholomew v. N. Y. C. & H. R. R. R. Co., 102 id. 716; Graham v. Manhattan R. Co., 149 id. 336 ; Hastings v. Central Crosstown R. R. Co., 7 App. Div. 312; Dillon v. Forty-second Street R. Co., 28 id. 404.)

I am unable to find a case to the contrary. Of those cited on behalf of the respondent it may be said as was said by Judge Cullen in one of them, viz., Dochtermann v. Brooklyn Heights R. R. Co. (supra, at p. 15): “ Most of the cases cited by the respondent’s counsel are plainly distinguishable from the one before us. Hayes v. Forty-second St., etc., R. R. Co. (97 N. Y. 259); Paulson v. Brooklyn City R. R. Co. (13 Misc. Rep. 387), and Bradley v. Second Avenue R. R. Co. (90 Hun, 419), were all cases where the parties voluntarily and without necessity were standing on the platform. How, while it is not negligence per se to stand on the platform of a street car,, it is but fair and reasonable that the person so riding should assume the risk ordinarily incident to such a position from the jolts and jars of the moving car, the unevenness of the track and the turning of curves, and not increase the responsibility or liability of the carrier for his safety.” What was said by the learned jurist of the persons so riding ” must be deemed to refer to those alluded to by him in the sentence immediately preceding, viz., those who voluntarily and without necessity ” chose to ride upon the platform, for there was no obvious intent to overrule the class of cases from which I have made citation. Those who voluntarily and unnecessarily elect to ride in a dangerous place may very well be held to assume the risk incident to the position ; and its to them there is of course no assurance on the part of the carrier that the place is safe as was said by the Court of Appeals in the Clark Case (supra), and no duty enjoined by law of protecting them by the exercise of extraordinary care as was said by the Appellate Division in the first department in the Lucas Case (supra). But the doctrine of the many cases herein cited has not _yet been authoritatively overthrown to the effect that passengers who are forced or invited by the common carrier to occupy a position upon the platform,, the steps or the running board, may travel there upon the implied assurance that the car will be so run as to make it safe; that the duty exists upon the part of the carrier to-insure such safety so far as the exercise, of commensurate care will accomplish that result; and that a sudden jerk or jump or a rate of speed so great as to necessarily throw them from the car (Hassen v. Nassau Electric R. R. Co., supra) is of itself sufficient evidence of negligence under the circumstances. The court cannot take judicial notice, and there certainly was no proof, that the defendant’s cars are always overcrowded, and that the steps as well as the body of the cars are always sold to patrons. The overcrowding of the car -must, therefore, be regarded as unustial. The step was an unusually dangerous place for the defendant to place a passenger, and under the unbroken line of authorities that fact enjoined upon. it the exercise of very great care to render his transportation safe. It may be that the plaintiff’s injuries were slight,, but that fact does not affect his right to justice and to the enforcement óf the law."

None of the authorities mentioned in the prevailing opinion supports the doctrine that the common carrier of passengers for hire is exempted, from liability merely because the mischief was accomplished by a greyhound-like movement of the car. The plaintiff’s testimony that “ all at once the car gave a jump ” is a distinct assertion that the movement which threw him off was a sudden one, and in that particular different in character from the preceding movement, under which he had managed to maintain his footing. He gave undisputed evidence tending to establish that he was accepted as a passenger in a place where his safety depended upon his being carried at a rate of speed which would enable him to hang on to the means of safety furnished him, and that he was nevertheless carried / along without any relaxation of the usual fast rate until by a jump of the car which came all at once he was torn from his holding and thrown to the ground by reason only of the sudden jump of the car thus occasioned, and both in reason and by authority was. clearly entitled to submit his claim for compensation to the judgment of a jury.

nI, therefore, vote for reversal.

Woodward, J., concurred.

Judgment affirmed, with costs.  