
    August Kleffmann, Respondent, v. Dry Dock, East Broadway and Battery Railroad Company, Appellant.
    
      Negligence — injury to a passenger voluntarily riding on the front platform of a street ear, knowing that it was dangerous to do so — charge as to his duty to go inside the car.
    
    In an action brought to recover damages for personal injuries, the plaintiff gave evidence tending to show that he, boarded one of the defendant’s horse cars and stationed himself on the front platform thereof with his back against the front of the car and with both hands grasping a rod behind him. There was plenty of .room for the plaintiff inside the car and he gave as his reason for remaining on the platform that he was smoking and that he was accustomed to ride on the front platforms of the defendant’s cars.
    He further testified that as the car proceeded, the driver thereof kept whipping his horses which were galloping; that the car jounced so that he did not dare to let go his hold of the rod and attempt to get inside the car; that he thought his position was dangerous, and would have, gone inside if the car had not been going so fast; that the conductor having rapped on the front door of the car for his fare, he released one hand from its hold upon the crossrod, took a nickel out of his outside pocket and passed it through a small slide in the door, which the conductor had opened for that purpose; that after he had. paid . his fare, the driver, still continued to whip the horses; when suddenly one of them stumbled and partially fell; that as it got up the driver struck it with the whip, and that it started the car with a jerk which threw the plaintiff off the platform, causing him to receive serious injuries.
    The defendant asked the court to charge: “ That if the plaintiff had reason to apprehend danger himself, on account of the speed of the car, it was his duty to go inside the car,” to which the court replied: “I decline to charge in the exact language as requested. I say this, gentlemen, that it is for you to take into consideration all the circumstances — the horses,,the car, the speed at which it- was going, the number-of persons on board of the car, and then bear in mind that it was the duty of the plaintiff, under the circumstances, - to' exercise such care and caution to avoid accident as a person of ordinary care and prudence would have exercised under the circumstancs.”
    
      Eeld, that a judgment entered upon a verdict in favor of the plaintiff should be reversed for the reason, as given by Yan Brunt, P. J., and Hatch, J., that the defendant was entitled to have the court charge as requested, and that the charge as made did not cover the point presented by the request to charge, and. for the reason,"as given by Laughlin, J., that the verdict as to the plaintiff’s freedom from contributory negligence was against the weight of evidence. Patterson and O’Brien, JJ., dissented. I
    Appeal by the defendant, the Dry Dock, East Broadway and Battery Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the 'office of the clerk of the county of Hew York on the 10th day of March, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 9th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Louis Steckler, for the respondent.
   Hatch, J.:

This was an action brought to recover damages fór injuries claimed to have been sustained by reason of the negligence of the defendant. The plaintiff testified that he boarded one of the defendant’s east-bound horse cars» at the southeast corner of Beach and Hudson streets, in the city of Hew York, on the 9th day of May, 1900, at about eleven o’clock at night. He boarded the car by the front platform, passed to the left side in the rear of the driver, and placed his back against the front. of the car, grasped the rod in his rear with both hands, and stood facing the horses. The car contained at the time but two passengers, and there was plenty of room for the plaintiff inside the car. He gave as his reason for remaining on the front platform that he was smoking, and testified that he had used this street car line for fifteen years and had ridden very many times on the front platform of the car. He further testified that as the car proceeded the driver kept whipping his horses, and they wére going upon a gallop; that the car jounced so that he did not dare to let go his hold of the rod and attempt to get inside the car; that he thought his position was dangerous, and that he would have gone inside had he dared and'did not because it was going so fast; that the conductor rapped on the front door of the car for his fare, and he released one hand from its hold upon the crossrod, took a nickel out of his outside pocket and passed it through a small slide in the door, which the conductor had opened for that pupose; that after he had paid his fare, the driver still continued to whip the horses, when suddenly one of them stumbled and partially fell, and as it got up the driver struck it with the whip, and it started the car with a jerk which threw the plaintiff off the platform, and the wheels passed over one leg, lacerating it badly and crushing the bone. The injuries thus sustained were quite serious. The plaintiffs' testimony was corroborated by one witness, who stated that he saw the horses, galloping and the car going about eight miles an hour, and that it was jouncing up and down. He did not see the plaintiff fall off the car, nor did he "testify that he saw the horse fall, Other witnesses testified to some slight corroborating facts as to the jolt of the car, but in the main the case rested upon the Uncorroborated, testimony of the plaintiff.

A It was claimed by the defendant that the plaintiff was in an intoxicated cdndition at the time, and that it'was by reason pf such' intoxication that he was unable to retain his place. The-plaintiff admitted having visited several saloons and taking, several drinks of wine and'1 seltzer, but claimed that he was not intoxicated. The physician who attended him at the hospital testified that he was intoxicated - when he arrived there; bht the plaintiff in answer to this.- claim gave proof by a policeman that after the injury he was. given a ' large drink of brandy, which .produced the condition to . which the ■ physician testified. 1

The evidence to support the theory that the. plaintiff exercised due care is meagre in the extreme. I have reached the conclusion, however, that there was enough in the evidence to justify a sub- . mission of the ease to'the jury upon the question of the defendant’s-negligence and the lack of contributory negligence,upon the part ■ of the plaintiff, The unsatisfactory character of' the testimony in support of the plaintiff’s claim and the practical preponderance of testimony showing that lie was under the influence.of liquor,, creates a condition where the rights of the defendant are to be carefully •guarded; and, under such circumstances, the proceedings had upon the- trial and the rulings of the court upon the evidence and in its charge to the jury will be scrutinized with care. '

It clearly appears that' the plaintiff knew while he was upon the platform and before1 he fell that his position was dangerous. ' He could not voluntarily place himself in a dangerous position, with knowledge' of "the fact,- and then charge dereliction upon the: defend- - ant in performing its duty, if he- could have removed himself from • the dangerous position and thus .escaped, injury. 1 The plaintiff’s ' only answer is that he did not dare release his hold Upon the rail of the car and pass through the door. We may take judicial notice of the construction of an ordinary horse street car. The plaintiff without difficulty released his hold of one hand to produce the five-, cent piece which he paid for his fare. It was at that time that tlie. driver was whipping his horses and they were galloping, and the plaintiff was aware of his dangerous position. He could have maintained his hold with one hand and opened the door with the other, or he could have requested the conductor to open the door and assist him into the car, if necessary. He did nothing, but remained in his dangerous position until he was jostled off.

Upon this subject the court was asked to charge “ That if the plaintiff had reason to apprehend danger himself, on account of the speed of the car, it was- his duty to go inside the car. The Court: I decline to charge in the exact language as requested. I say this, gentlemen, that it is for you to take into' consideration all the circumstances—the horses, the car, the speed at which it was going, the number of persons on board of the car, and then bear in mind that it was the duty of the plaintiff, under the^circumstances, to exercise such care and caution to avoid accident as a person of ordinary care and prudence would have exercised under the circumstances.”

The request to charge was in all respects proper, and the defendant became entitled to have the jury instructed as requested either in the language or its equivalent. (Lyons v. Avis, 5 App. Div. 196.) Ho thing had been said upon this subject in the general charge of the court, and the testimony of the defendant, to which we have already adverted, shows with clearness the applicability of the request. The charge as made'did not cover the point. It was general in character, and left the jury to consider all the circumstances and then say whether the plaintiff exercised such care and caution as would have been used by an ordinarily prudent person. That, however, was not the question presented by the request. It related to a concrete fact, to wit, the apprehended danger of the position which the plaintiff occupied and his duty to go into the car. Appreciating the danger of his position, the law characterized his failure to act as imprudent, and the defendant was entitled to have the jury so instructed. (Odell v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 323 ; Magar v. Hammond, 171 id. 377.) As the charge of the court did not present this question to the jury, and as the defendant was entitled to have it so presented, it follows that the court fell into error in refusing to charge it.

For these reasons the judgment and order should be reversed and a. new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., concurred; Laughlin, J., concurred on the ground that the verdict as to plain tiff’s freedom from contributory negligence is against the weight of evidence; Patterson and O’Brien, JJ., dissented.

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