
    Lionel Feldheim, an Infant, by Louis Feldheim, His Guardian ad Litem, Respondent, v. Brooklyn, Queens County and Suburban Railroad Company, Appellant
    Second Department,
    December 5, 1907.
    Railroad — negligence — injury to passenger riding upon bumper of ' trolley car — assumption of risk — failure, to show negligence.
    A person who rides upon the bumper of a crowded trolley car assumes the usual risks incident to that perilous position, even though the conductor has collected his fare, and he cannot recover for injuries received by being caught in the trolley rope when the pole left the wire, that being an ordinary occurrence.
    When no cause for the trolley pole leaving- the wire is shown other than the fact that the car was running twelve miles an hour, there is a failure to establish negligence on the part of the defendant.
    Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 27th day of April, 1907.
    
      Francis F. Stoddard, Jr., for the appellant.
    
      Morris W. Hart, for the respondent.
   Miller, J. :

The plaintiff, with three other .persons, was riding on the rear bumper of a crowded car. The trolley pole slipped off the wire, and the rope attached to it caught the plaintiff about the shoulder and cast his head against the vestibule window, breaking the glass and inflicting slight injuries, for which he lias recovered the judgment appealed from. He had often seen trolley poles come off the wire, and knew that when that occurred the- rope went up with the pole. He describes the car as traveling very fast, with a rocking and swaying motion. The only witness who testifies as to the speed of the car says that it was going twelve miles an hour. The conductor had'collected plaintiff’s fare.

It has frequently been- held that it is not negligence per se to ride upon the platform or running board of a crowded car, but even in such case the passenger assumes the usual risks incident to the position. (Kiefer v. Brooklyn Heights R. R. Co., 111 App. Div. 404.) But I. do not think there is any assurancei from the company that, a passenger can ride on a bumper with safety, even though his fare is accepted, because the position is so obviously dangerous that the law will not create an inrplied assurance of what the party must have known was no.t the fact. Bather than wait for another car the plaintiff preferred to take the risk of riding in a perilous situation; by accepting his fare the defendant consented that he do that, and probably agreed that it would not by any affirmative act increase his peril, but it incurred no obligation to protect him from the obvious perils of the situation. , The plaintiff should have known that he was likely to be caught by the rope in case the pole slipped off the wire. ' He voluntarily put himself in the way of that danger, and as nothing occurred but what any man of ordinary prudence should have apprehended, he was guilty of contributory negligence as matter of law.

Moreover, the plaintiff failed to prove that the defendant was guilty of any negligence causing the injury. Ho unusual movement of the car is disclosed, and nothing is shown to have occurred other than the ordinary and usual' occurrences incident to the running of trolley cars. The trolley pole' slipped off the wire, but negligence cannot be inferred from so common. an occurrence, and there is nothing in the record to disclose what caused the pole to slip off. The plaintiff argues that it was the speed of the car and the rocking and swaying motion, but it is just as probable (and to my mind more probable) that the plaintiff or some of his companions on the bumper caused the occurrence. In any view of the ease the plaintiff cannot recover, and the judgment should be reversed. ' ’ _ ,

Woodward, Jenks, Hooker and Bich, JJ., concurred.

•Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  