
    Bertha Brainard, as Administratrix, etc., of Louis Brainard, Deceased, Appellant, v. The Nassau Electric Railroad Company, Respondent.
    
      Negligence — the act of a passenger in surrendering his seat to a woman and standing upon a running hoard of a street car is not negligent per se.
    It is not negligence per se for a passenger upon a crowded street car to stand upon the running hoard, or to surrender to a w-oman passenger the privilege of occupying a seat in the car.
    It is fair to assume that, while riding upon the running hoard, he availed himself of such means as were provided for his security.
    Appeal by the plaintiff, Bertha Brainard, as administratrix,, etc.,, of Louis Brainard, deceased, 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 4th day of May, 1899-, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the "Kings County Trial Term.
    This action was brought to recover damages for the death of the plaintiff’s husband, alleged to have resulted from the negligence of the defendant.
    
      George A. Strong [H. W. Bridges with him on the brief]., for the appellant. "
    
      Stephen C. Baldwin [Frederick A. Martyn with him on the brief], for the respondent.
   Hatch, J.:

The evidence as we view it would have warranted the conclusion that the deceased was thrown from the" ear by reason of a sudden violent jerk of a character inconsistent with its prudent and careful management. This condition we have already-held sufficient to warrant a finding of negligence, in the operation .of the car, and there is nothing, so far as we' are able to discover in. the circumstances of this case, which removes it from the application of the rule. (Hassen v. Nassau Elec. R. R. Co., 34 App. Div. 71; Dochtermann v. Brooldyn H. R. R. Co., 32 id. 13.) It is fair to assume,, we think, that the deceased, as he stood upon the running board of the car, was using such means as were furnished for security to a person standing thereon. He had ridden some distance and maintained his position, and the language of one of the witnesses who saw him is that as the jerk came * * * Mr. Brainard was knocked off.” The language of the other witnesses, and the fact that a person must use a support to remain upon the running board while a car is in motion, justify the -inference that it was the sudden jerk which caused the fall and not any lack of making use of the supports. The car was crowded with passengers; and riding upon the running board was not per se negligence.

The fact that the deceased had an opportunity to occupy the seat vacated by his wife, and voluntarily surrendered such right to another passenger, deles not charge him with contributory negligence as matter of law. Such question is usually one of fact and is dependent upon the circumstances. (Lehr v. Steinway & H. P. R. R. Co., 8 N. Y. St. Repr. 813; S. C., 118 N. Y. 556; Still v. Nassau Electric R. R. Co., 32 App. Div. 276.) In the present case the surrender was made to a woman, who may be presumed to have been weaker than the deceased. ' Custom, even at Coney Island, has not deadened all sense of courtesy ; and if it had we should continue to think that the law of negligence has still such a respect for the ameneties of life as not yper se to charge as negligence the surrender of a seat by a man to a woman.

The judgment should be reversed and a new trial granted.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.

NoTE.-^-The rest of the cases of this term will he found in the next volume, 45 App. Div.— [Rep.  