
    Emilie Kohm, as Administratrix, etc., of Adolph Kohm, Deceased, Respondent, v. Interborough Rapid Transit Company, Appellant.
    Negligence— injury to a passenger, standing on the platform of a car, from Ms falling or being pushed between the cars — question as to its resulting from, the overcrowding of the car.
    
    In an action, brought against a corporation operating an elevated railroad in the city of Hew York, to recover damages resulting from the death of the plaintiff’s intestate, who, while riding on the rear platform of one of the cars composing one of the defendant’s trains, either fell or was pushed between that car and the one following it, thereby sustaining injuries which resulted in his . death, evidence that the defendant, which was able to control the admission of passengers to its trains, permitted so many passengers to board the train in question that there were no seats or standing room inside the cars, and that the rear platform of the particular car on which the intestate was riding was. also crowded, is, it seems, sufficient to render the question of the defendant’s negligence one of fact for the jury, if it appears that the overcrowding either caused or contributed to the accident.
    What evidence does not warrant a finding that the overcrowding either caused or contributed to the accident, considered.
    Hatch, J., dissented.
    Appeal by the defendant, the Interborough Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of October, 1904, upon the verdict, of a jury for $3,000, and also from an. order entered in said clerk’s office on the llth day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. McIntyre, for the appellant.
    
      Charles Steckler, for the respondent.
   O’Brien, J.:

This action is brought to recover damages sustained by the plaintiff through the death of her husband, which, it is alleged, was caused by the negligence of the defendant while he was a passenger upon one of its cars. On the day of the accident plaintiff’s intestate boarded a north-bound train upon defendant’s elevated road-, and while standing upon a platform of one of the cars he either fell or was pushed between that car' and the following one in such a manner that his leg was crushed, and about a month thereafter he died as the result of the injury. The plaintiff, as appears from the complaint, seeks to predicate defendants liability upon its negligence-in permitting the train to be overcrowded, thus -compelling the deceased to occupy a dangerous place, and while he was thus exposed to danger in negligently starting its train with a sudden and violent movement so that the passengers were jostled and. thrown against each other, and the intestate thereby caused .to fall between the two cars.

The accident happened shortly after six o’clock in the afternoon,, and the evidence showed that the defendant’s north-bound trains, including the one. upon which the intestate was riding, were crowded at.-that time. A common carrier engaged, as this one is, in a great ' city in the transportation of a large number of passengers between stations from which it ban control their admission to its trains, is bound to exercise care to so direct the movements and disposition of those whom it undertakes to transport as to preserve their safety. (Cattano v. Metropolitan St. R. Co., 173 N. Y. 565 ; Lehr v. S. & H. P. R. R. Co., 118 id. 556; Graham v. Manhattan R. Co., 149 id. 336; Viemeister v. B. H. R. R. Co., 91 App. Div. 510; Dawson v. N. Y. & Brooklyn Bridge, 31 id. 537.) In the Cattano Case (supra) the Court of Appeals said: It was the duty of the defendant, when it allowed passengers to ride on the platform, to use a high degree of care to protect them from injury.” When a carrier of passengers fails to provide either seats or standing room inside its cars, so that a passenger must stand on the platform in order to ride at all, and the company permits him to ride there, it cannot allow the platform to become so crowded that he is liable to be pushed off without presenting a question of fact for the jury as to its negligence in the premises.

Not only did the testimony show that upon this train the defendant undertook to carry more passengers than could either sit or stand inside the cars, but it showed further that the rear platform of the particular car upon which'plaintiff’s intestate was riding was also crowded, and whether the defendant was negligent in permitting its trains to be thus crowded was a question of fact which possibly might, with propriety, have been submitted to the jury, if there had been any evidence from which they could have found that the overcrowding either caused or contributed to the accident. There was, however, no such evidence. Only one witness was called by the plaintiff who gave testimony concerning the happening of the accident itself, and even this witness did not see the intestate until after he had fallen from the platform.

This witness, Mcllravey, testified that the “ car was packed inside and outside; ” that the passengers'were all squeezed up against one another ; ” that the train after stopping just south of the curve at Twenty-third street “ started very suddenly,” so that “ everybody lurched forward,” and then all came back again, fell back on each other; ” that immediately after the train had thus started he felt some one pulling on his coat tail, and turning around saw the intestate with his leg “ down between the bumpers 'of the cars, between the two platforms of the two cars,” and that he “ did not exactly see this accident.” The evening was a stormy one, the platforms were wet and slippery with snow that -had been brought upon them by the passengers, and whether the intestate simply slipped and fell by reason of this condition, or whether he was pushed by the other passengers upon the car, the witness does not attempt to state, as, indeed, he could not, for the reason, as already said, that he did not see the intestate until after he had fallen.,

On behalf of the defendant the guard upon-the car, Siebert, was called and testified that going around the curve the man’sz foot went in from under him and went down in between the cars; the man’s foot slipped from under him,” and that he did not see any one thrown against the man, or any jostling or any lurch. The witness Scheler, a passenger, testified that when the car turned ” the intestate “ lost his balance * * * and * "* * slipped in between the two cars; ” and another passenger, Komblatt, testified to the same effect. Cowen, a foreman for the Metropolitan Railway Company, and also a passenger, testified that as the car -took the curve to go around, this man had slipped * * * his foot went - right from under him and slipped down in between the cars.” This witness further said : “ At the time the car turned the curve I was booking in the direction of the man that fell. There was nobody sho ved against one another there at that point; not at that time.”

All of the witnesses called on behalf of the defendant testified that there was no sudden jerk or jolt in starting the train,. and the court properly eliminated this element of alleged negligence from the consideration of the jury, placing the plaintiff’s right to recover, ' if at all, upon the overcrowding of the car.

It appeared that the cars were vestibuled, with the front and rear platforms inclosed, so that there was no place where injury-to a person standing upon them might be apprehended except at the space necessarily left open for a passageway between the different, cars of the train, and where the guard was stationed for the purpose of operating the doors to permit the entrance and exit of passengers. There is no claim made that it was negligence to allow a passenger ! to stand within this vestibule, unless the defendant had permitted it to become so crowded that a reasonably prudent person would apprehend danger from the situation, but, as already pointed out, even if the jury would have been justified in finding that the platform was so overcrowded, nevertheless there is no proof from which it could have been found that the plaintiff’s intestate fell or received his injuries by such overcrowding.

It will not do to permit a jury to speculate that some one upon the platform might have jostled against him and thus caused the injury. Not a single witness testified that the pushing or crowding of the other passengers caused his leg to get between the bumpers of the car; indeed, all those who saw the man at the moment the accident happened testified, not that he was pushed, but that his foot slipped and he fell. If the accident happened in this way, it was not caused by any negligence on the part of the defendant, and for this reason the verdict is not supported by the evidence.

It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., and McLaughlin, J"., concurred; Ingraham, J., concurred in result; Hatch, J., dissented.

Ingraham, J. (concurring):

I concur with Mr. Justice O’Brien, except that I do not agree with the statement that because the car was crowded and the deceased voluntarily placed himself on the platform, there was a question for the jury.

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