
    Henrietta Fremont, as Administratrix, etc., of Francis M. Fremont, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — an attempt to board a street railway car fairing the “rush hour" — when a motorman is not bound to stop and take on passengers—the slackening of the speed of the car is not an invitation to board it — charge as to the inference to be drawn from the failure of the railway company to pi'oduce a non-resident witness or to examine him on commission.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the defendant operated a street railway on Church street in the city of New York; that the accident occurred at half-past five in the afternoon at what was known as the “rush hour;” that for twenty minutes previous to the accident the defendant’s north-bound cars had been blockaded; that, as the second car which passed north, after the raising of the blockade, was crossing Cortlandt street, or when it had reached a point a few feet north of that street, the intestate attempted to board it. Ho succeeded in grasping one of the stanchions, but, as the plaintiff’s evidence tended to show, the speed of the car was suddenly accelerated at this time, and the intestate slipped or fell from the car, sustaining injuries which resulted in his death.
    There was evidence tending to show that the intestate signaled the motorman of the car to stop by holding up his hand, but it did not appear that the motorman saw him or acknowledged the signal. Several other men had rushed for and succeeded in boarding the car just before the intestate attempted to board it. It did not appear, however, that either the motorman or the conductor saw that the intestate was attempting to board the car. The car was traveling at a speed of five or six miles an hour at the time of the accident, and the motorman testified that when a blockade occurred during the “ rush hour ” he had orders to pass streets without taking passengers, in order to equalize the traffic; that he did not slow up or stop for passengers at Cortlandt street, and was not. aware that any one attempted to board the car there.
    
      Held, that, although, in view of the fact that other persons were boarding the car at the time the intestate attempted to do so, it could not be said that he was guilty of contributory negligence as matter of law, there was no evidence of any negligence on the part of the defendant, and that the court should have-dismissed the complaint:
    That, in view of the conditions existing at the time of the accident, the defendant could not be held to have been negligent because of the failure of the-motorman to stop and take on passengers at Cortlandt street;
    That the fact that the motorman slackened the speed of the car as it was crossing Cortlandt street did not constitute an invitation to persons to board it while it was still moving, particularly as it appeared that the speed was slackened at a time when people were crossing the tracks.
    Upon the trial it was shown that the conductor of the car was working for a third' party in Tampa, Fla., and had refused the defendant’s request that he come to New York and testify on the trial. The counsel for the defendant requested the court to instruct the jury that no inference adverse to the defendant could be drawn from the absence of the conductor. The court said, “I will charge-it with this modification, that you have a right to consider the failure of the. defendant to procure the testimony of the conductor by commission as a circumstance bearing upon the facts in the case.”
    
      JETeld, that the defendant was entitled to have the court charge as requested, and that the modification of its request was erroneous.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of December, 1902, upon the verdict of a jury for $30,000, and also from an order entered in said clerk’s office on the 11th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      John S. Wise, for the respondent.
   Laughlin, J.:

This is a statutory action to recover for the death of Francis M. Fremont, alleged to have been caused by the negligence of the defendant. On the 11th day of October, 1900, decedent while •attempting ■ to board a north-bound car of the defendant on Church street at or near the northerly line of Cortlandt street in the city of New York, slipped, stumbled or fell, his feet passing under the car and the wheels of the rear truck passed over his legs, Inflicting injuries which resulted in his death. The defendant moved for a nonsuit at the close of the plaintiff’s case upon the ground that the decedent was guilty of contributory negligence and that no negligence on the part of the defendant was shown. This motion was reriewed at the close of all the evidence, and to the denial of these motions the defendant excepted.

The accident occurred about half-past five o’clock in the afternoon, at what the witnesses described as the rush hour.” There had been a blockade of the north-bound cars for about twenty minutes. The car which the decedent attempted to board was the second car passing north after the blockade. • It appears without controversy that the decedent was not waiting at the usual place to board the car. The uncontroverted evidence shows that he ran toward or after the car and attempted to board it while it was moving and while he was running. Some of the testimony indicated that as the car was passing over Cortlandt street he followed it on a run from the southeasterly corner and attempted to board it at or beyond the northerly line of Cortlandt street, and other testimony indicates that he ran out from a point on the easterly side of Church street and a little north of Cortlandt street diagonally toward the car and attempted to board it about twenty feet northerly of the northerly crosswalk. The car was in motion at the time the decedent attempted to board it and its speed is variously described by witnesses as “ going—• well fairly at a good gait: at least, a fair gait; at a pretty fair rate of speed, about the usual rate; ” but each of the witnesses gives a more definite estimate of the speed except one called by the defendant. Two witnesses called by the plaintiff testified on this subject. One of these witnesses was running after the car from the southwest corner of Cortlandt and Church streets, and as he neared the car was just behind the decedent. He says that the car seemed to be making up lost time and that he would judge it was going more than four miles an hour. The other testified that the car was going at the rate of four or five miles an hour and that the decedent attempted to board it when it was going about five miles an hour. The motorman, who at the time of the trial was not in the employ of the company, testified that as he approached Cortlandt street he slowed down to about four miles an hour and again accelerated his speed while crossing Cortlandt street, and after passing the middle of the street was going five or six miles an hour; that his car was twenty minutes behind time and that during the “rush hour,” when there has been a blockade, they have orders to take only a few passengers and to pass streets without taking passengers in order to equalize the traffic ; that he did not stop or slow up for passengers ' at Cortlandt street, and was not aware that any one attempted to board the car there. One of the plaintiff’s witnesses testified that the decedent while at or near the southeast comer of Cortlandt and Church streets signaled the motorman to stop by holding up his hand; but it does not appear that the motorman saw him or acknowledged his signal; and this witness claims to have signaled the motorman himself on the southwest corner, but concedes that the motorman paid no attention to his signal. The car was a combination car, the open seats being in front and the closed part in the rear. Decedent attempted to board it about the middle, just in front of the closed part. He took hold of the stanchion with one or both hands, and stepped or attempted to step upon the running board. Testimony of one of the plaintiff’s witnesses is to the effect that just at this time the speed of the car was suddenly accelerated and that the decedent’s foot slipped, or he did not secure a foothold, and after being dragged, as already stated, he dropped off. The conductor was in the closed part of the car collecting fares, and it does not appear that either he or the motorman saw the decedent attempting to board the car. Several other men rushed for and succeeded in boarding the car near the northerly crosswalk just before the decedent attempted to board it. There is evidence tending to show that the car slackened its speed somewhat while passing over the crossing, but this slackening is stated to have been “ imperceptible ” and to have been at a time, when there were people passing over the track from west to east.

It was the duty of the motorman to have his car under control as he approached this crossing, and to slow down while passing over Cortlandt street, if there were people crossing the track, as testified to by one of the witnesses. This is an important duty which the defendant owes to the traveling public, and has been repeatedly announced and enforced by the courts. It will not do to hold that when the railroad company has its car under control and slackens its speed in obedience to this duty, that this is notice to people anywhere in sight of the car that it is going to stop, or an invitation to people to run and attempt to board the car before it stops. Perhaps, under all the circumstances and in view of the fact that others were boarding the car at this time, it may not be said that the decedent was guilty of contributory negligence as matter of law; but we fail to discover any evidence of negligence on the part of the defendant. There was no invitation to the decedent to board the car, and there is no evidence that the motorman or conductor knew that he was attempting to board the car at the time the speed was accelerated. The company cannot be held negligent merely because the motorman did not stop to take on passengers at this crossing. It is evident that if, after cars have been delayed, every car in the vicinity of the blockade stopped to take on all passengers, the cars would become overcrowded and unable to take on passengers at other crossings, and frequent and long stops by the first cars out of the blockade would tend to prolong the effects of the blockade and not relieve and equalize the traffic over the entire line. It is, therefore, necessary in some circumstances for the cars to pass streets without taking on passengers. The company should not be chargeable with negligence from the mere fact that the speed of the car passing over a crossing at the rate of four or more miles per hour is somewhat accelerated at the usual point of stopping to take on passengers when the circumstances were such that it was not intended to stop at that point. Those who attempt to board a car under such circumstances going at a speed of four, five or six miles an hour, in the absence of an invitation by signal or otherwise from the conductor or motorman, assume the risk of the change of speed and of their ability to get on in safety. For these reasons we think the motion for a non-suit and for dismissal of the complaint should have been granted.

The conductor of the car was not called by the defendant as a witness. It was shown that he was not in the employ of the company, was not within the jurisdiction of the court and that he was working in Tampa, Fla., and refused to come as a witness for the defendant on its request. Counsel for the defendant requested the court to instruct the jury that no inference adverse to the defendant could be drawn from the absence of the conductor who was no longer in its employ, was without the State and refused to appear as a witness. The court said, concerning this request, “I will charge it with this modification, that you have a right to consider the failure of the defendant to procure the testimony of the conductor by commission as a circumstance bearing upon the facts in the case.” Defendant excepted to the refusal of the court to charge as requested and to the modification as charged. This exception also presents a reversible error. The defendant was under no obligation to issue a commission to examine this witness who was not in its employ and was employed and sojourning if not residing in another State. Furthermore, it does not appear that he saw the accident or could have given any material evidence.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  