
    JACOB SOLOMON, by Guardian, Plaintiff, v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Defendants.
    The question of negligence, the facts being uncontroverted, is a question of law for the Court. Per Court of Appeals in Gonzales v. N. Y. and Harlem R.R. Co.
    The front platform is a place of danger. The occupation of such platform by a passenger is prima facie evidence of negligence on his part, and the onus is on him to rebut the presumption.
    The presumption is not rebutted when all that appears by the evidence is that the passenger voluntarily seated himself on the front platform.
    That which constitutes negligence in an adult will also constitute it in a child of tender years.
    The not stopping a car when requested by a passenger does not give the passenger a license to occupy a place of danger, and so relieve hint from the charge of negligence, unless such non-stoppage caused the plaintiff to occupy the position of danger.
    It is not error to exclude evidence of a statement made in the presence of a member of a corporation who is not shown to have occupied such a position that his statements, or admissions by silence, would bind the company.
    After a plaintiff has rested, it is in the discretion of the Court whether to allow the case to be reopened and further witnesses called.
    Such discretion is properly exercised when the proposed evidence does not bear on the point on which the complaint is dismissed.
    Before Barbour, C.J., Jones and Fithian, JJ.
    
      [Decided June 11, 1869.]
    This case was tried before Mr. Justice Barbour and a jury.
    The plaintiff, then being about the age of nine years, on the 6th day of September, 1861, got into the defendants’ car at Fifty-ninth street, to go down to a butcher’s shop on the First avenue, between Forty-sixth and Forty-fifth streets. He got in at the rear platform; after a while passed through the car, and seated himself on the step of the front platform. He remained there seated until the accident occurred, which resulted iq. the injuries for which this action is brought. While thus seated, the car jolted, and threw the boy off, occasioning the injuries in question. Before the accident happened the boy had twice asked the driver to stop—once at Forty-fifth street, and once at Forty-sixth street; on each occasion the driver replied, “ No.”
    There is no evidence showing that the car was crowded, or that there was not plenty of room for the boy to sit inside, nor is there any evidence that the boy paid any fare, or, if he did, whether he was sitting on the step of the front platform when he paid it.
    On the direct examination of one of plaintiff’s witnesses, she was asked: “ Were you present when any of the company came there after the boy was injured?” She answered, “Yes.” She was then asked: “ What account did the child give in the presence of that person as to the injury ?”
    The question was objected to; the objection sustained, and plaintiff excepted.
    After the plaintiff rested, defendants’ counsel moved to dismiss the complaint, on the ground that no negligence had been shown on the part of the defendants, and also on the ground that plaintiff’s own negligence and misconduct contributed to the accident and injury sustained by him.
    Pending the discussion of the motion, and before its decision, Mr. Lyon, a witness for plaintiff, arrived in court, and plaintiff’s counsel offered to call him to testify as to the obstruction which caused the boy to be thrown from the car. The court refused to allow the witness to be called, and plaintiff’s counsel excepted.
    The motion to dismiss the complaint was granted, and plaintiff’s counsel excepted.
    The court ordered the exceptions to be heard in the first instance, at General Term.
    
      Mr. Henry Morrison for plaintiff.
    The defendant is liable for the injury, although it was by accident or force however inevitable or irresistible.
    The neglect of duty by its contract.
    By refusal to let the plaintiff alight, all subsequently that happened to him by way of injury is beyond and exceeds the ordinary liability of defendant as carrier in the performance of a duty within the limit of legal performance (Read et al. v. Spaulding, 5 Bos., 403 ; Davis v. Garnell, 6 Bing., 716; William v. Grant, 1 Conn., 492 ; Scovill v. Griffith, 2 Kern., 509; Teal v. Sears, 9 Barb, 317).
    The complaint ought not to have been dismissed for either of the grounds contended by defendant (Johnson v. Hudson R R.R. Co., 20 N. Y., 74; Mullhado v. Brooklyn City R.R. Co., 30 N. Y., 370 ; Drew v. Eighth avenue R.R. Co., 26 N. Y., 49 ; Willis v. Long Island R.R. Co., 32 Barb., 398, 399).
    Plaintiff being a child of tender years augments and does not diminish this proposition (Sheridan v. Brooklyn and Newtown R.R. Co., 36 N. Y., 39 ; Honigsberger v. The Second avenue R.R. Co., 1 Daly, 89; Lynch v. Nordin, 1 Adol. & Ellis, p. 29, new series ; Barclay v. Second avenue R.R. Co., Supreme Court General Term, Dec., 1864).
    The case ought to have been submitted to the jury, and, ex debito justicies, the Court on this appeal ought not to refuse the plaintiff that right (Ernst v. Hudson R. R.R. Co., 35 N. Y., p. 10).
    
      Mr. A. J. Vanderpoel for defendants.
    It was clear that there was no negligence on the part of the defendants. None is suggested by plaintiff’s counsel, except the refusal to stop the car. Defendants fully discharged their duty to the plaintiff in furnishing a sufficient and safe vehicle for him to ride in. Even if the defendants refused to stop the car, that was no evidence of any negligence on the part of the defendants concurring or contributing to the injury.
    The following rules may now be regarded as established universally :
    That to sustain an action against a common carrier, the plaintiff must be wholly without fault.
    
    That if there is the slightest negligence on the part of the plaintiff which contributes to the injury, the action will not lie.
    There was no negligence in this ease on the part of the driver in not stopping the car.
    
      This refusal did not justify the plaintiff in alighting from the car while it was in motion.
    It was negligence on plaintiff’s part to attempt to alight from the front platform of the car while it was going down hill.
    “ It is the duty of the passenger, on getting on board of a car, to place himself in a safe position therein, if he is able to obtain such position, and it is no excuse, if he place himself in an unsafe one, that the persons in charge know that he is unsafe, and do not drive hipa therefrom, when the unsafety is known to the passenger. That riding upon the step of a street car is less safe than a seat inside requires no proof: it is obviously so” (Clark v. Eighth avenue R.R. Co., 1 and 2 Transcript Appeals, 108).
   By the Court:

Jones, J.

In Gonzales v. The ¡New York and Harlem ¡Railroad Company, the Court of Appeals held, that it must be considered as settled that the question of negligence, the facts being uncontroverted, is a question of law for the court.

In the present case the facts relied on as constituting negligence on the part of the plaintiff are uncontroverted. They are that he was seated on the step of the front platform at the time of the occurrence of the accident, and that he voluntarily seated himself there. Does this constitute negligence ? ■

In Clark v. Eighth avenue R.R. Co. (1 Transcript Appeals, p. 105 ; also reported in 36 N. Y., p. 135), the learned judge who delivered the opinion of the court laid down this doctrine: “When it appears that a passenger is riding in a ear in a place of hazard or danger, his negligence is prima facie proved, and the onus is upon him to rebut the presumption.”

Even if this is not to be regarded as an authoritative decision by the Court of Appeals, still it is sound in principle.

A step further, general experience has demonstrated that the front platform of a car is a place of hazard and danger, especially when a person occupies a place thereon, such as the present plain tiff did. Such was the view of the court in Clark v. Eighth ave. R.R., and even if the remarks in the opinion in that case on this subject should be regarded as obiter, yet I think there can be no doubt of their accuracy.

The plaintiff, then, was negligent in occupying the position he did; and that his negligence contributed to the accident, admits of no question.

The complaint therefore was properly dismissed, unless both or one of" two propositions submitted by plaintiff’s counsel are or is correct.

One of these propositions is, that what would constitute negligence in an adult, will not in a boy nine years of age.

The case of Sheridan v. Brooklyn and Newtown Railroad Company, 36 N. Y., cited from page 43, negatives this proposition.

The other proposition is, that the driver, by not stopping when requested, rendered the company hable for any injury that might thereafter happen, although the plaintiff’s own negligence may have contributed thereto.

But not so. Conceding, as intimated in the case of Sheridan v. Brooklyn and Newtown R.R. (cited supra), that said not stopping was an act of negligence on the part of the defendants (concerning which no opinion need now be expressed), or was even a wrongful act, yet it gave no license to the plaintiff to negligently expose himself to danger.. If the act of not stopping caused the plaintiff to occupy the position of danger, then the rule in the case of Clark v. Eighth ave. R.R. Co. would apply. But the evidence clearly shows that the plaintiff’s position on the car was not caused or induced by the act of not stopping the car.

It results that the complaint was properly dismissed.

Two exceptions to refusals to admit testimony remain to be" considered.

There was no error in the refusal to admit evidence of the plaintiff’s statement made in the presence of one of the company. Who this person was, and what his position in the company was, did not appear. It should at least have been preliminarily shown that he occupied such a position, that his statements or admission by silence would bind the company.

Even if there were error, still it is immaterial, for whatever statement the hoy may have made, could not have altered his own testimony as to the facts upon which his negligence was predicated.

So, too, there was no error in refusing to allow the witness Lyon to be called. After plaintiff rests, it is a matter of discretion whether to allow the case to be reopened, and further witnesses called. In the present case that discretion was properly exercised, as the evidence proposed to be given did not bear on the point on which the dismissal proceeded, to wit, the concurring negligence of the plaintiff.

Exceptions overruled, and judgment on the verdict ordered for the defendant, with costs.  