
    Hanora Dwyer and John Dwyer, as Administrators, etc., of James Dwyer, Deceased, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
    Third Department,
    December 30, 1909.
    •Railroad — negligence — attempt to board moving train — right of conductor to prevent such act — excessive force.
    The conductor of a railroad train has a right to use such force as is necessary to prevent a person from boarding the train while in motion.
    Although, in preventing a person from boarding the train, the conductor may have pushed him back with more .force than was necessary, so that he fell and was killed, the railroad is not liable, as the conductor was acting in an emergency created by the negligence of the person killed.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 7th day of October, 1908, upon the verdict of a jury for $3,500, and also from an order bearing date the 5tll day of October, 1908, and entered in- said clerk’s office, denying •the defendant’s motion for a new trial made upon the minutes.
    
      William P. Rudd, for the appellant.
    
      Thomas 8. Fagan, for the respondents.®
   Smith, P. J.:

The judgment has charged the defendant with having caused the death of plaintiffs’ intestate by reason of its negligence. On the 1st day of October, 1907, at Bedford, in the county of Westchester, plaintiffs’ intestate attempted to board a train of the defendant after the train had started from the station and while it was in motion. The defendant’s assistant conductor leaned far enough out from the train to. push the plaintiff’s intestate away and prevent his boarding the train. The result of the force used was that plaintiffs’ intestate fell over backward and struck upon his head upon one of the ties of another track, ánd in three days died. The learned trial judge recognized the right of the defendant’s servant to prevent the plaintiffs’ intestate from boarding the train. That right would seem to be undoubted. The train was not a vestibuled train. The plaintiffs’ intestate might easily have fallen between the cars or under the wheels, and it was clearly the duty'of the defendant’s servant to use such force as was necessary to protect him from peril, the possible result of ■ his own negligence.' The jury has determined that the defendant’s servant used more force than was necessary, and it is upon this theory that the judgment was obtained and is sought here to be sustained.

We are of the opinion that the defendant is not justly chargeable with the death of the plaintiffs’ intestate. By hi's own negligence he had created an emergency which the defendant’s servant was required- to meet. . Just how much force was necessary to prevent the plaintiffs’ intestate from boarding the train it was impossible to tell. He was a man who weighed 170 or 180 pounds, and was coming toward the train partly running and partly staggering, as the defendant’s, servant swears. The defendant’s assistant conductor stood upon the step of the platform just below the top: Holding on with .his right hand he reached over with his left and pushed the plaintiffs’ intestate away.- With what persistence plaintiffs’ intestate would attempt to force an entrance to the train defendant’s servant had no knowledge. If in that- emergency created by the negligence of the plaintiffs’- intestate himself the defendant’s servant used more force than was necessary, the defendant should, not be held liable for a mgre mistake of judgment upon his part as to the amount of force necessary to be used. In 29 Cyc. 434 the rule is laid down as follows: “ Acts in Emergencies. Persons suddenly placed in a position of peril and impending, danger do things which ordinarily would be acts of negligence, but acts done in such extreme circumstances are not. to be judged by ordinary rules. And if - an act has to be performed in a brief .period with no time in which to determine the best course negligence cannot be predicated of it.” In Wynn v. Central Park, N. & E. R. R. R. Co. (133 N. Y. 575) the head nóte in part reads:. “It seems where an employe, of a railroad company is confronted with a sudden emergency the failure on his part to exercise the best judgment the case renders possible does not establish lack of care and skill on his part.”

Within this rule of law there is no evidence in the case which would justify this verdict. It is not claimed that the conductor struck him or did anything further than to push him with his left hand while he was leaning over from the car. That plaintiffs’ intestate should have fallen upon the back of his head and suffered an injury which caused his death was not within reasonable anticipation, and upon the evidence was not caused by any act of the defendant’s servant for which the defendant should be held liable.

The judgment and order should, therefore, be reversed and anew trial granted, with costs to appellant to abide the event. ■

All concurred.

Judgment’ and order reversed and new trial granted, with costs to appellant to abide event.  