
    Philipp Nies, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    
      Negligence—injury to a passenger giving notice to stop and stepping upon the running boa/rd of an open street car—failure of the car to stop until it had crossed the trades of another road, which jolted the passenger from the car—proof as to the condition of the crossing—a defect therein must be pleaded.
    
    In an action to recover damages for personal injuries there was evidence tending to show that the plaintiff was a passenger riding upon one of the defendant’s open street cars traveling north upon Third avenue, in the borough of Brooklyn; that when at Nineteenth street the conductor asked him where he wished to get off and he replied at Fifteenth street: that assuming that the car would stop on the south side of Fifteenth street, the plaintiff got out on the running board and, while in that position, signaled to the conductor to stop the car; that the conductor pulled the bell cord, but that the motorman did not attempt to stop the car; that, on the contrary, he increased the power and ran over the crossing at Fifteenth street, that street being occupied by another street railroad, and that in passing over its tracks the plaintiff was jolted from the running board and injured.
    There was no evidence that the crossing was made in an unusual manner.
    
      Held, that a verdict was properly directed in favor of the defendant;
    That the defendant could not be charged with negligence in failing to stop the car at the point where the plaintiff expected it to stop;
    That evidence of the condition of the crossing at Fifteenth street was not admissible for the purpose of showing “that the condition of these tracks was bad, that they were in poor condition, and that it was by reason of that condition of the tracks that this man was thrown off in running across,” that element of negligence not having been charged in the complaint.
    
      Semble, that such evidence would have been competent to show that the crossing was in such a condition that it was negligent, on the part of the defendant, to pass over it at the rate of speed maintained by its car Bartlett and Hirschberg, JJ„ dissented.
    Appeal by the plaintiff, Philipp Hies, 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 25th day of January, 1901, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at the Kings County Trial Term.
    
      Henry JEseher, Jr., for the appellant.
    
      1. B. Oela/nd, for the respondent.
   Woodward, J. :

The plaintiff was nonsuited in this action, and upon a review in this court is.entitled to the most favorable construction which the jury might properly have placed upon the evidence, but under this rule we are'of opinion that the plaintiff has failed to establish a cause of action. The evidence indicates that the plaintiff was a passenger upon one of the defendant’s, cars running upon Third avenue in the borough of Brooklyn, going north, at about seven o’clock in the evening of August 7, 1899, having boarded the car at. or near Forty-fourth street. The plaintiff says that when at Nineteenth street the conductor asked him where he wanted to get off, and he replied at Fifteenth street. There is a short .block between Fifteenth and Sixteenth streets, and the plaintiff, assuming that the car was going to stop on the south side of Fifteenth street, got out on the running board of the open car, and while in that position he signaled to the conductor to stop the car.

The car was running at a fair rate of speed, as fast as a man could run, and the conductor pulled the bell cord; for some reason ' the motornian did not attempt to stop the car, but put on more power and ran over the crossing of Fifteenth street, which was occupied by another line of surface railroad. In passing over this ■ line of tracks the ear, we may assume, jolted the plaintiff off from the running board, and he was injured. There is no evidence in the case that the Car had slowed down for the purpose, of permitting the plaintiff to alight; on the contrary, it appears that the car did not slack up, but. that the speed was increased to pass over the Fifteenth street tracks, so that we have the situation of the plaintiff leaving a perfectly safe position in the car and taking, a place upon the running board, and while in this position signaling for the car to stop. Instead of stopping at the point where the plain tiff-seems to have expected it would stop, the car passed on over the other tracks, and in doing so there was the Usual jolting, resulting in the accident. There .was evidence that there was a'sign some where in the vicinity which said Stop,” but it was not shown that the direction was to the defendant’s motormen, or that it directed the car to stop at any particular point. The most that can fairly be said of the evidence is that it indicated that the motorman had his car in control as it approached the crossing of Fifteenth street, and, finding the crossing clear, the car passed on over the tracks in the usual manner. There is no evidence that the crossing was made, in an unusual manner, and it can hardly be said to be negligence, in so far as a passenger is concerned, for a street car not to stop at the point where the passenger expects it to stop. If some one had been injured at the crossing by a collision, the question might be presented in another light; but the plaintiff having taken a place upon the running board before giving the signal to stop, must be deemed to have accepted the risk of his position, and the defendant cannot be reasonably charged with negligence because the car proceeded further than the plaintiff expected before coming to a standstill to let him off. So long as there was no conduct, on the part of the motorman to mislead him, and the defendant had provided him a perfectly safe place in which to ride, it cannot be charged with negligence in not stopping at a particular point.

It may be that had the plaintiff offered evidence to .show that the crossing was in such a condition that it was negligent to pass over it at the rate of speed maintained by the defendant, there would be some merit in the suggestion of error in refusing to permit evidence as to the condition of the crossing at Fifteenth street; but the plaintiff declared that it was his purpose to offer the evidence to show “ that the condition of these tracks was bad, that they were in poor condition, and that it was by reason of that condition of the tracks that this man was thrown off in running across.” This negligence was not charged in the complaint, and the evidence was not proper for this purpose, though it might have been as bearing upon the manner in which the cars should be operated over the crossing. There is no evidence in the case that any one in the car was.disturbed by the crossing; no evidence that the crossing was made at an unusual rate of speed, or without the exercise of that degree of care which the defendant was bound to exercise in taking care of its passengers, who were occupying the places afforded for the accommodation of passengers, and we are of the opinion that •there was no evidence upon which a jury might properly have found a verdict for the plaintiff.

The judgment appealed from should be affirmed, with costs.

All concurred, except Bartlett, J., who reads for reversal, with whom Hirschberg, J., concurred.

Willard Bartlett, J.

(dissenting) :

I think that the evidence of the defendant’s negligence in this case was sufficient to require its submission to the jury. Before the plaintiff left his seat and took his place upon the running board, he had notified the conductor that he desired to stop at the street which the car was then approaching. After reaching the running board he. signaled the conductor to stop, and the conductor responded to .this.signal by ringing the bell. The, motorman appears to have paid no attention to the bell, but went on over intersecting tracks at a speed sufficient to produce- “ a kind of a jerk and start,” which, according to the testimony of the witness J ohn A. Owens, “ fired ” the plaintiff right off into the street. The conduct of the plaintiff in getting down upon the running board as he approached' •the place where the- conductor knew he desired to stop, cannot be deemed contributory negligence as matter of law; nor was- there anything in his subsequent action which requires the légal inference that he was guilty of negligence contributing to the accident, although of course the jury, if the question had been left to them, might have found the plaintiff guilty of contributory negligence as' matter of fact.

. In view of the presumptions which prevail in favor of the plaintiff upon a nonsuit, I think a new trial should be granted.

Hirsohberg, J., concurred.

Judgment affirmed, with costs.  