
    ELIZA PAYNE, as administratrix, &c., of WILLIAM D. PAYNE, deceased, Plaintiff and Appellant, v. THE FORTY-SECOND STREET AND GRAND STREET FERRY RAILROAD COMPANY, Defendant and Respondent.
    I. CARRIER OF PASSENGERS.
    1. Negligence of cabbies.—What is necessaby to establish.
    1. Something more must be shown than a probability that the carrier was negligent; there must be some element of moral certainty and exclusion of reasonable doubt.
    
    1. Example of a case not falling within this rule.
    
      a. The case is stated in the opinion as shortly as it is possible to state it.
    II. EVIDENCE.
    1. COMPBOMISE, OFFEB OF, NOT ADMISSIBLE IN EVIDENCE.
    1. This, though the party sued was the one whoxmade the offer, and before mahing it had investigated the matters out of which the suit arose, and at the time of making it, neither admitted nor denied his liability.
    
    Before Curtis and Sedgwick, JJ.
    
      Decided August 3, 1875.
    Appeal by plaintiff from a judgment. The facts sufficiently appear in the opinion.
    
      Tracy, Olmstead & Tracy, attorneys; C. E. Tracy 
      and G. W. Ellis, of counsel for appellant, urged :
    I. The circumstances detailed in evidence show that the “ break-up,” testified to by the witness MoDermot, was for the purpose of allowing the boy to alight, in accordance with a request to the drivers to stop the car; no other reason or motive for stopping was proved ; the car, however, was continued in motion afterwards for over half a block and the width of Eighteenth street, and the boy evidently was thrown from the car while standing on the platform waiting for the car to stop. These facts would have justified a finding of negligence in the drivers, and entitled the plaintiff to have the question submitted to the jury (Mulhado v. Brooklyn City R. R. Co., 30 N. Y. 370 Mettlestadt v. Ninth Avenue R. R. Co., 4 Robt. 377). “That there is more hazard in leaving a car while in motion, although moving ever so slowly, than when it it is at rest, is self-evident. But whether it is imprudent and careless to make the attempt depends upon circumstances ; and where a party, by the wrongful act of another, has been placed in circumstances calling for an election between leaving the cars or submitting to an inconvenience and a further wrong, it is a proper question for the jury whether it was a prudent and ordinarily careful act, or whether it was a rash and reckless exposure of the person to peril and hazard.” — Per Allen, J. (Filer v. N. Y. Central R. R. Co., 49 N. Y. 51).
    II. “A common carrier, in offering to take passengers, must give free ingress and egress, and is liable for any damage which may occur to such passengers from his negligence in not securing them from risk, when approaching or leaving the carriage” (Wharton, on Negligence, §§ 652, 821; Crocheren v. Ferry Co., 1 Supreme Ct. R. 447; Filer v. N. Y. Central R. R. Co., above). The carrier becomes liable for an injury occurring to one taking a dangerous position, notwithstanding rules and notice, if with his acquiescence (Smith v. Terry Co., 5 Supreme Ct. R. 689).
    III. The car was overloaded, and if the jury should find that that contributed to the accident, defendant was guilty of negligence, and is liable accordingly (S. L. 1860, Ch. 515). “ Every person while violating an express statute, is a wrong-doer, and as such is ex necessitate negligent in the eye of the law.” Per Davis, J. (Jetter v. N. Y. & H. R. R. Co., 2 Keyes, 154 ; Beisegel v. N. Y. Central R. R. Co., 14 Abb. N. S. 35; Ryan v. Thompson, 6 Jones & Spencer, 133 ; Israel v. Clark, 4 Esp. 259.) In such a case the defendant can excuse his default only by proof of concurring circumstances beyond his control. No such proof was offered (Wharton on Negligence, § 128); Sheridan v. Brooklyn, &c., R. Co., 36 N. Y. 39).
    IV. More care towards the young is required than towards others. . . . In the case of young persons, the jury are not bound to require the same demureness -and caution as in the case of an older person (O’Mara v. Hudson R. R. R. Co., 38 N. Y. 449 ; Haycroft v. L. S. & M. S. R. Co., 5 N. Y. Supreme Ct. Rep. 51; Wharton on Negligence, § 637). It is the duty of a street railway company to provide vehicles which insure security to their passengers, and not to suffer their passengers to occupy unsafe places upon the vehicles (East Saginaw, &c., R. Co. v. Bohn, 12 Am. Law Reg. 745).
    V. The case is not one in which there was any question of contributory negligence (Johnson v. Hudson R R. R. Co., 20 N. Y 65; Willis v. L. I. R. R. Co., 34 Id. 670, 679). The death of the boy silenced the witness who could have given direct evidence of the negligence of the defendant, and the plaintiff was therefore entitled to the verdict of the jury upon such circumstantial evidence as could be offered. It is said in Gee v. R. R. Co. (8 Q. B. 161): “In considering what -evidence ia sufficient to call for an answer, I think that you must look at the means the plaintiff has of proving more.”
    VI. At most, this question, if presented at all, should have been submitted to the jury as a question of fact (Maugam v. Brooklyn R. Co., 38 N. Y. 458; Downs v. N. Y. Central R. Co., 47 Id. 83).
    VII. If the boy was in fact pushed off by the driver, then the defendant was liable, for no evidence was offered to show malice or willful misconduct on the part of the driver causing the injury to the boy. Malice or misconduct can not be presumed (Wharton on Negligence, § 128 ; Higgins v. Watervliet Turnpike Co., 46 N. Y 25 ; Wharton on Negligence, § 425).
    VIII. The evidence offered by plaintiff of an offer by defendant to satisfy the claim, the subject of this action, before suit brought, was erroneously excluded. An exception was duly taken (Boss v. Ackerman, 46 N. Y. 210 ; Green v. H. R. R. Co,, 32 Barb. 34).
    
      Ely & Smith, attorneys, and Moses Ely, of counsel for respondent, urged:
    I. The mere statement of this case is enough to condemn an application for a new trial. It surely can require no argument to show that no course was left to the learned judge at trial term but to grant the nonsuit asked.
    II. The offer rejected was (briefly) to prove that the president of defendants sought and had an interview with plaintiff, and offered her money in settlement, and neither admitted nor denied the liability of his company; and the rejection was proper, (a.) Such was not an admission of any fact by the president. (5.) There was no offer to prove, nor will it be presumed, that it could have been proved, that even an express admission by the president that his company was (o blame would bind defendants. Such an admission can hardly be supposed to be within the scope of his agency for the company (First National Bank a. Ocean National Bank (in court of appeals). See Daily Register, of April 12, 1875.
   By the Court.—Curtis, J.

The pleadings concede that it was the defendant’s duty, as a common carrier, to receive passengers and deliver them at such points on its railroad as they 'should wish to enter or leave its cars. The deceased, a boy of twelve years of age, was a passenger in one of defendant’s cars, occupying a seat in the front part of the car. The platforms and passage-way were- crowded with passengers. The rear platform was so full no one could get on or otf. At about Twentieth street the boy went towards the front of the car, and out upon the platform. When the car passed the lower corner of Nineteenth street and reached about the middle of the block, there was a break-up, as if breaks were being applied to the car, and when the corner of Eighteenth was almost reached, there was a jerk and an immediate stoppage of the car. The boy was found lying injured near the hind wheel of the car, his head not quite up to the upper Eighteenth street crossing. From this injury he died. There was snow on the side of the street from eighteen inches to three feet, which had been swept from the track and down to which it slanted, and the boy was lying between the snow and the side of the car.

The only witness who testified as to seeing how the injury occurred said, that he saw him on the instant of his coming down; it was all a flash ; that he was pushed off or fell off nolens volens ; that he could not say whether he was pushed or fell; that it came to his mind that may-be he was not holding on and the shook of the car threw him ; that so far as he knew he may have been jerked off, or pushed off; and that he did not know how it was done ; that he saw the boy stand-, ing perfectly still, and that he made no motion as if going to jump from the car.

This evidence fails to show that the boy’s injury was caused by any act or neglect of the defendants, or of their servants. He may have been pushed off, or jerked off by their carelessness, or he may have accidentally slipped or fallen from the car as he was preparing to alight when it should stop, or he may have jumped from the car without making any motion as if going to do so. If bare probabilities are considered it is difficult to see what they tend to show, and in this case the circumstances proved are insufficient to establish negligence on the defendant’s part after he came out on the platform. It does not appear that the movement of the car was unusual when the brakes were applied to stop it, as it approached Eighteenth street. If it had been left to the jury to find whether the injury occurred through the carelessness of defendant's servants, and they had found that it did so occur, there is no evidence in the case sufficiently direct or positive to sustain such a finding. There must be something more shown than a probability of defendants’ negligence ; there must be some element of moral certainty, and exclusion of reasonable doubt. Justice requires that it should be proved that defendants committed the wrong, before they can be adjudged liable.

It was the duty of the railroad company in carrying passengers, in view of their condition, age, sex, or infirmity to exercise care and judgment in receiving and delivering them. This is a part of the consideration they render for the fare paid by the passenger. If it is disregarded, and the passage-way and rear platform are crowded with passengers, the only mode of egress left is by the front platform, and that mode selected by the deceased seems to have been both natural and reasonable under the circumstances.

On the trial the counsel for the plaintiff. offered to prove that the president of the defendants, after causing this accident to be investigated, sought and obtained an interview with the plaintiff; and thereat, before this action was commenced or contemplated, or counsel was consulted by the plaintiff, the said president endeavored to settle the matter with the plaintiff, and offered to pay the plaintiff a sum of money in settlement thereof, and did not then or since question or deny the liability of the defendant.

The counsel for the defendant objected to the introduction of any such evidence, the objection was sustained, and the plaintiff’s counsel excepted.

The offer is not to prove that the president of the defendants admitted or denied their liability, even if he had the power to bind them by such admission. It is an offer to show that the president proposed to pay the plaintiff a sum of money, in the course of negotiations for a settlement of the plaintiff’s claim. The court properly excluded it. It is the policy of the law to favor the settlement of variances and controversies. The welfare of the community is protected by it. The admission of this class of testimony, would tend to prevent compromises and settlements of differences (Waldridge v. Kennison, 1 Esp. R. 143 ; Turner v. Railton, 2 Id. 274 ; Williams v. Thorp, 8 Cow. 202 ; 1 Green. Ev. § 192).

The judgment appealed from, should by affirmed with costs.

Sedgwick, J., concurred.  