
    Hubert Francis, Resp’t, v. The New York Steam Company, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    1. Negligence — Personal injuries — Passenger in street car with ARM OUTSIDE WINDOW.
    Whether or not it is negligence in a passenger in a street car to allow his arm to extend outside of the window of the car, is a question to be determined from the facts in each case. There is no general rule which declares that it is or is not negligence.
    2. Same — What evidence does not justify court in charging, as MATTER OF LAW, THAT IF PLAINTIFF’S ARM PROJECTED THROUGH THE WINDOW AND BEYOND THE OUTER EDGE OF THE CAR, HE COULD NOT RECOVER.
    The accident occurred in the summer, when the windows of the street cars are usually open, as the windows of the car were on this occasion. There were but nine or ten passengers in the car. The plaintiff sat in a seat with his right arm lying on the window sill, wholly within the car, he testified, but partly without, as the conductor and driver testified, but they do not attempt to say how far his arm extended beyond the outside of the car. The evidence does not disclose that there was anything in the condition of the street, or that there was any circumstance which should, have caused the plaintiff to have anticipated danger. Two of the defendant’s witnesses, the conductor and the driver of this car, gave the plaintiff no warning; and the conductor testified that though he saw the plaintiff’s arm out of the window, he did not know that he was in danger. Held, that this is not an action by a passenger against his carrier, between whom contractual relations exist, and out of which reciprocal duties arise; but it is an action against a defendant having a right to a limited use of the street, and required to exercise its right so as not to unnecessarily endanger travelers; that the evidence contained in the record would not have justified the court in charging, as a matter of law, that if the plaintiff’s arm projected through the window and heyond the outer edge of the car, he could not recover.
    Appeal from a judgment of the general term of the court <of common pleas, affirming a judgment entered on a verdict for the plaintiff for $500 damages, and affirming an order denying a motion for a new trial. The appeal is heard on a case which contains all of the evidence.
    A few days before June 15, 1883, the defendant lawfully opened a trench parallel with, and about twenty inches south of, the south rail of the south track of the Sixth Avenue Street Railroad Company, in Vesey street. This trench was three or four feet deep, six feet wide, and its sides were sheathed with plank to prevent the earth from caving in. The defendant laid one or two planks across this trench, which formed the floor of what is called, in this litigation, a bridge. Uprights set at the angles formed by the floor of the bridge and the trench were nailed to the ■edge of the floor, and a board was nailed to the uprights standing on each side of the bridge, called side-boards or hand-rails, and were to prevent persons crossing the bridge from stepping or falling from it into the trench. The length of these uprights is not disclosed, but it does appear that the upper end of the two which stood on the north side of the trench were higher than the sills of the windows of the street cars. The north edges of these uprights were about twenty inches from the south rail of the south track of the Sixth Avenue Road, but were only from three or four inches from the sides of the passing cars.
    About half-past eight in the morning of June 15, 1883, the plaintiff was sitting on the right, or south, side of a Sixth avenue car, which was going east in Vesey street, and as the car passed the so-called bridge his right arm came in contact with one of the uprights and was broken midway between the elbow and the shoulder. This action was brought to recover damages for this injury. The plaintiff asserted that the bridge was so insecurely built that one of the uprights fell upon, and broke, his arm. The defendant denied this, and asserted that the injury was caused by plaintiff’s arm extending so far through the window that it came in contact with the upright. The plaintiff testified that he sat by the car window engaged in reading a newspaper, with -his arm lying against the window blind and wholly inside of the car. Two witnesses sworn in behalf of the plaintiff did not observe that his arm was out of the window. The conductor and driver of the ■car testified that the plaintiff’s arm was out of the window, but how far they did not attempt to say.
    
      The court charged that if the jury found that the plaintiff sat with his arm out of the open window, and it was so brought in contact with the upright, and broken, it would not defeat his right to recover unless they further found that such conduct was negligent. To this, the defendant excepted, and requested the court to charge that if the plaintiff’s arm extended through the open window so that it came in contact with the upright, and was thereby broken, he was guilty of contributory negligence, and could not recover, which was refused and an exception taken. The jury found a verdict for the plaintiff and assessed his damages at $500.
    
      Julius H. Seymour, for pl’ff-resp’t; James W. Hawes, for def’t-app’lt.
   Follett, Ch. J.

The court did not err in refusing to dismiss the complaint, or in refusing to direct a verdict for the defendant.

Whether the upright fell upon the plaintiff’s arm, and whether its fall was caused by defendant’s negligence, and whether the plaintiff’s arm was inside or outside of the car, were questions for the jury, and, if found in the plaintiff’s favor, he was entitled to a verdict.

The principal question discussed on this appeal is whether the court erred in instructing the jury that if they found that the plaintiff’s arm was out of the window when injured, it was a question of fact for them to determine, whether, under the circumstances of this case,’ he was guilty of contributory negligence.

When passengers upon railroads operated by steam have received injuries to their arms by reason of their protrusion from open windows, and have sought to recover dama.ges against their carriers, it has been held in some of the reported cases that such protrusion is, as a matter of law, •contributory negligence; while, in others, it has been held that whether it is negligence is a question of fact. This question does not seem to have been determined by any of the appellate courts in this state, unless it can be said to have been passed upon in Holbrook v. Utica and Schenectady R. R. Co. (16 Barb), 113; affirmed 12 N. Y., 244).

Whether the arm of the plaintiff, in the case cited, rested on the sill of the car window, or projected through the window, was a disputed question.

The court charged: “ That the company only contracted to carry her safely when she kept within the cars; that it was for the jury to say whether her elbow was out of the cars at the time of the injury; and, if it was, it was a cir•cumstance or fact from which they might infer negligence or want of ordinary care on her part. The judge was then requested by the defendant’s counsel to charge, as matter of law, that if they found that the plaintiff’s arm or elbow was outside of the window of the car when the injury was received, it was an act of negligence, and she could not recover; but the judge refused to charge on that subject other than he had charged, to which refusal the defendant excepted.”

Judge Rugóles, speaking for the court, said: “In this refusal to charge as requested I was at first inclined to think there was error; but my brethren are unanimously of opinion that the judge had already charged the jury substantially in conformity with the request, and that he was right, therefore, in declining to repeat what he had before stated. I yield to their judgment on this point, and concur in affirming the judgment.”

It is apparent that the jury had not been charged substantially in conformity with the request, but they had been instructed that it was a question for them to determine, whether the plaintiff’s elbow was inside, or outside the window; and if it was outside, it was a circumstance,, or fact from which they -might infer negligence, or want of ordinary care on the plaintiff’s part. The jury found a verdict for the plaintiff, upon which a judgment was entered, which was affirmed by the general term and by the court of appeals.

The judgment in this case is to the effect that whether the plaintiff was negligent in riding with her arm out of the window, was not a question of law, but of fact.

In Dale v. Del., Lack, and West. R. R. Co. (73 N. Y., 468), the court charged that if the plaintiff negligently,, whether consciously or unconsciously, put his arm outside of the window, and thus contributed to the injury, he could, not recover; but if his arm, while resting on the sill, was. thrown out by a sudden lurch of the car, that fact would not defeat his right to recover. The plaintiff had a verdict, on which a judgment was entered, which was affirmed at general term, but was reversed by the court of appeals for an error in the admission of evidence, the validity of the-instruction not being considered.

In Hallaban v. N. Y., L. E. and W. R. R. Co. (102 N. Y., 194; 1 N. Y. State Rep., 367), and in Breen v. N. Y. C. and H. R. R. R. Co. (109 N. Y., 297; 14 N. Y. State Rep., 835), the records show that the jury in each case was instructed that if they found, that the plaintiff was riding with his arm protruding from the open window, it was contributory negligence, and no recovery could be had. The plaintiff - recovered a verdict in each case,- and' the validity of the instructions were not, and could not be reviewed.

The courts of Massachusetts and Pennsylvania have held that it is negligent, as a matter of law, for a railway passenger to ride with his arm extending through the window, and that no recovery can be had for an injury received by reason of the arm being in this position. Todd v. Old Colony and Fall River R. R. Co., 85 Mass., 18; S. C., 89 id., 207; Pittsburgh and Connellsville R. R. Co. v. McClurg, 56 Pa. St., 294.

In other states it has been held that whether such conduct is contributory negligence is a question of fact. See cases cited in Beach Contrib. Neg., § 56; 2 Shear & Red. Neg. (4th ed.), § 519; 2 Wood’s R’y Law, 1103, § 303.

In Dahlberg v. Minneapolis Street R. R. Co. (32 Minn., 404), and in Summers v. Crescent City R. R. Co. (34 La. Ann., 139), it was held that whether a passenger upon a street car was negligent in riding with his arm out of the window, was a question of fact. We are satisfied that a general rule, applicable to all cases, cannot be laid down; and that whether die question is one of law, or fact, must be determined' by the circumstances of each case. Street railroads are operated under circumstances widely different; some in the crowded thoroughfares of large cities; others in streets little used, in suburban districts and villages. Conduct which would be declared negligent, as a matter of law, in one case, might not be so in another. This conclusion brings us to the consideration of the question as to whether the evidence in the case at bar was such as to require the court to rule as a matter of law, that if the plaintiff’s arm was partly out of the window when injured, he negligently contributed to the accident, and could not recover. The accident occurred in the summer, when the windows of street cars are usually open, as the windows of this car were on this occasion. There were but nine or ten passengers in the car. The plaintiff sat in a seat with his right arm lying on the window sill, wholly within the, car, he testified, but partly without, as the conductor and driver testified, but they do not attempt to say how far his arm extended beyond the outside of the car. The evidence does not disclose that there was anything in the condition of the street, or that there was any circumstance which should have caused the plaintiff to have anticipated danger. Two of the defendant’s witnesses, the conductor and the driver of this car, gave the plaintiff no warning; and the conductor testified that though he saw that plaintiff’s arm was out of the window, he did not know that he was in danger. This is not an action by a passenger against his carrier, between whom contractual relations exist, and out of which reciprocal duties arise; but it is an action against ■a defendant having a right to a limited use of the street, and required to exercise its right so as not to unnecessarily endanger travelers. We are of opinion that the evidence-contained in the record would not have justified the court-in charging, as a matter of law, that if the plaintiff’s arm projected through the window and beyond the outer edge-of the car, he could not recover.

The judgment should be affirmed, with costs.

All concur.  