
    John Norris, Resp’t, v. The Brooklyn City Railroad Co., App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed June 26, 1893.)
    
    Negligence—Street railroads—Overcrowding.
    Plaintiff while a passenger on one of defendant’s cars gave up his seat to a lady and stood with one foot in the car and the other on the platform which was crowded with passengers, some of whom stood on the guard rail outside. The platform • gave way and threw plaintiff into the-street, injuring him. It appeared that the car had been in use twelve, years; that there was an unusual number of passengers, and that the conductor did not use proper efforts to' prevent them from getting on. Held, that the court properly refused to dismiss the complaint, and left the question of. defendant’s negligence to the jury.
    Appeal from judgment in favor of plaintiff, entered on & verdict, and from order denying motion for a new trial on the minutes.
    
      M. L. Towns, for resp’t; Morris & Whitehouse, for app’lt.
   Osborne, J.

On the evening of January 25, 1892, plaintiff was' a passenger on a car of the Myrtle avenue branch of defendant’s lines. He boarded the car near Fulton Ferry, and after riding some distance surrendered his seat to a female passenger, and took his stand in the rear doorway, with his shoulder leaning against the door, one foot in the car and the other on the platform. As the car moved along it became greatly crowded, so that there were upwards of twenty-five passengers on the rear platform, and some five or six people, including the conductor, stood on the guard rail outside of the rear dashboard. When on Myrtle avenue, near Duffield street, the rear platform broke and went to the ground, and by reason thereof plaintiff was violently thrown to the street and sustained serious and permanent injuries. Plaintiff brought this action to recover damages for said injuries, he claiming that they were caused by the negligence of the defendant in that the platform was weak and insecure, and that defendant permitted said platform to become overcrowded and unable to sustain the weight imposed upon it. Plaintiff had a verdict, and from the judgment entered thereon and the order denying a motion for a new trial, this appeal is taken.

The one point presented on this appeal by the learned counsel for the appellant is on the exception taken to the denial of the motion to dismiss the complaint, and the ground urged is that plaintiff failed to establish negligence on the part of the defendant.

It appeared on the trial that the car in question was one of a large number built by the defendant, and that it had been in use over twelve years; it also appeared that on the night in question there was an unusually large number of persons seeking passage on defendant’s cars, owing to the Elevated Railway Company having temporarily stopped the running of its cars.

The case was submitted to the jury by the learned trial judge, and they were left to decide whether the platform was insecure, > and defendant knew it to be insecure, or could have known it by the exercise of proper care, and also as to whether defendant was negligent in its conductor permitting'' so large a number of persons to ride upon the platform.

We think that-the learned trial judge pursued the proper course in submitting this case to the jury. It plainly appeared that the defendant undertook to carry more passengers on the car in question than could sit and stand within the car, and that both platforms and steps were filled to their utmost capacity; no proper effort seems to have been made by the conductor to prevent this excess of passengers from getting on the car, while it appears that he. was diligent in collecting fares from every one on the car. In the case of Lehr v. Steinway & H. P. R. R. Co., 118 N. Y., 556; 30 St. Rep., 1, the plaintiff was injured by being pushed off a crowded platform, and, in that case, the court said: “The court would not have been justified in non-suiting the plaintiff and holding, as a matter of law, that the exercise of a reasonable foresight would not have led the defendant to anticipate that overcrowding this car and its platforms might render accidents like the one which befell the plaintiff probable. Whether the defendant was negligent in carrying so many passengers was a question of fact for the jury.”

We think that the law, as expounded by the court of appeals in the case just cited, made it the duty of the learned trial judge to submit this case to the jury, and that the motion to dismiss the complaint was properly denied.

The judgment and order appealed from should be affirmed, with costs.

Yan Wyok, J., concurs.  