Jenks, J.:
The plaintiff showed an accident, but he did not prove actionable negligence. I think that while riding upon the step of the car he, in the language of Cullen, J., assumed “ the risk ordinarily incident to such a position from the jolts and jars of the moving car., the unevenness of the track and the turning of curves.” (Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13, affirmed.) (See, too, Ayers v. Rochester Railway Co., 156 N. Y. 104; Francisco v. Troy & Lansingburgh R. R. Co., 78 Hun, 13.)
The plaintiff boarded the car at the corner of Richard and Myrtle avenues in Glendale where the territory is “ free ground — almost farms.” The car was then so full of passengers that he was compelled to stand upon the step and, so standing, to ride. He testifies that the car, while in motion, “ gave a jump and thro wed me off,” but on cross-examination he expatiated: “This car * * * got agoing very fast—just like it always runs there; they run fast out there in the country and this car was running along just like they all run .* * * and I was hanging on there ' with my two hands onto this rail. * ' * * All at once the car gave a" jump and then I fell off. I couldn’t state exactly whether it jumped upwards or jumped ahead, but I know I fell off. After I fell the car stopped; it was still going as fast as it could. I didn’t say that it jumped ahead. She didn’t jump sideways, she jumped up and down, I suppose, kind of going like this (illustrating), something like 4 greyhound running.” There is no other evidence as to speed or motion, and there is no evidence that any other person noticed unusual speed or motion, or that any passenger other than this plaintiff was affected by them.' It is thus evident that the plaintiff knew of the usual speed of the cars in this neighborhood'.; that this car was going only. at. the usual rate and that he must travel while standing upon the step. He also testifies that when he fell or was thrown off the car did not depart from a [427]*427motion that was then constant.. For he says that it neither jumped ahead nor sideways, i. e., there was neither sudden jerk nor sudden aberration ; the car simply jumped up and down like a greyhound running ; i. e., the motion was a continued oscillation or continuous rocking of the car as it sped along. It is not shown that this motion was unusual or abnormal or due to any unusual condition of the car, rails ■or roadbed, or of its management, so we cannot assume aught but that a car traveling at that rate naturally developed such motion. As the plaintiff has neither proved nor attempted to prove anything peculiar, we may then go a step further to assume that the accident was due to the continuous and normal jolting or jarring of the moving car (the greyhound motion), incident to its headway. But this was the risk which the plaintiff assumed, as was said in the Dochtermann Case (supra). And so it is not shown that there was any omission or commission pointing to legal neglect on the part of the defendant. Of course, it may be said that if the car had not gone so fast it would not have developed the “greyhound” motion. But, as I have said, there is no evidence that the speed was unusual (but the contrary), or that the speed was unlawful. And it was not incumbent upon the common carrier of passengers, when the plaintiff placed himself upon the step of the car, even though it permitted him to ride there as a paying passenger, to reduce the speed of its car from its usual and presumably lawful rate so that it might lose its then natural oscillation. I think that the learned trial court (White, J.) rightly dismissed the plaintiff. An examination of the cases cited in support of a reversal (McGrath v. Brooklyn, Queens Co. R. R. Co., 87 Hun, 310; Hassen v. Nassau Electric R. R. Co., 34 App. Div. 71; Brainard v. Nassau Electric R. R. Co., 44 id. 613 ; Henderson v. Nassau Electric R. R. Co., 46 id. 280; Lucas v. Metropolitan Street R. Co., 56 id. 405 ; Clark v. Eighth Avenue Railroad Company, 36 N. Y. 135; Ginna v. Second Avenue Railroad Co., 67 id. 596; Nolan v. Brooklyn City de N. R. R. Co., 87 id. 63 ; Graham v. Manhattan R. Co., 149 id. 336; Hastings v. Central Crosstown R. R. Co., 7 App. Div. 312; Dillon v. Forty-second Street R. Co., 28 id. 404) shows an essential difference, not only in the facts, of course, for all cases thus differ, but in the essential fact which brought home negligence to those defendants and which fact respectively has no similar basic fact in the case at [428]*428bar. But instead of paragraphic comments upon each.case, perhaps-I may thus more briefly indicate the discriminations: In McGrath'scase the accident was due to speed which produced violent and unequal motion. This was established by several witnesses, and people-were shaken around and off their seats. In Hassen's case the motor man should not have applied excessive motor power suddenly so as to-cause a sudden violent jerk. In Henderson's case the driver should not have driven his car so as to cause violent contact between the passenger and the van on the highway. In Lucas' case, when the driver intended to turn a curve at “ terrible speed,” the passenger should, have been warned at that point that he must increase his caution. In G leurlc's case the driver could. have stopped in time to avoid imminent collision and should not have driven on into danger. In. Ginneds case the switch was left open so that the car ran off upon it, producing a violent jolt or shock. In Holan's case the driver should not suddenly have whipped one of the horses so that it-plunged terribly under the blow, first forward arid then to one side. In Graham's case the defendant should not have disobeyed the-statute as to gates and the closing of them, nor should its servant have conducted himself so as to cause the crowd to sw;ay and jostle-the plaintiff so that he must grasp the railing, and hence suffer injury. As Martin, J., says: “ Even if the plaintiff assumed the ordinary risJc which attended riding upon the platform, he had aright to assume that the defendant’s servants would cause no unusual disturbance of the crowd, and that the cars were so constructed as-not to render his position dangerous from their proximity to each, other in passing over any portion of the road, or at least if such, danger existed that he would be apprised of it.” In Hastings' case: the driver should riot have given the horse a sudden blow with the-whip, which caused him to plunge forward so as to carry the car off" the track. In Dillon's case the driver should not have driven the car at a rapid rate when he struck the temporary turnout with violencé.
I have attempted thus to indicate the salient feature which, to the minds of the courts respectively, warranted submission of these cases to the jury. JBut where can I find the corresponding act or oniission. for a basis of negligence in the case at bar ? For I find upon the evidence "nothing but a natural motion, constant and incidental to the [429]
Free access — add to your briefcase to read the full text and ask questions with AI
Jenks, J.:
The plaintiff showed an accident, but he did not prove actionable negligence. I think that while riding upon the step of the car he, in the language of Cullen, J., assumed “ the risk ordinarily incident to such a position from the jolts and jars of the moving car., the unevenness of the track and the turning of curves.” (Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13, affirmed.) (See, too, Ayers v. Rochester Railway Co., 156 N. Y. 104; Francisco v. Troy & Lansingburgh R. R. Co., 78 Hun, 13.)
The plaintiff boarded the car at the corner of Richard and Myrtle avenues in Glendale where the territory is “ free ground — almost farms.” The car was then so full of passengers that he was compelled to stand upon the step and, so standing, to ride. He testifies that the car, while in motion, “ gave a jump and thro wed me off,” but on cross-examination he expatiated: “This car * * * got agoing very fast—just like it always runs there; they run fast out there in the country and this car was running along just like they all run .* * * and I was hanging on there ' with my two hands onto this rail. * ' * * All at once the car gave a" jump and then I fell off. I couldn’t state exactly whether it jumped upwards or jumped ahead, but I know I fell off. After I fell the car stopped; it was still going as fast as it could. I didn’t say that it jumped ahead. She didn’t jump sideways, she jumped up and down, I suppose, kind of going like this (illustrating), something like 4 greyhound running.” There is no other evidence as to speed or motion, and there is no evidence that any other person noticed unusual speed or motion, or that any passenger other than this plaintiff was affected by them.' It is thus evident that the plaintiff knew of the usual speed of the cars in this neighborhood'.; that this car was going only. at. the usual rate and that he must travel while standing upon the step. He also testifies that when he fell or was thrown off the car did not depart from a [427]*427motion that was then constant.. For he says that it neither jumped ahead nor sideways, i. e., there was neither sudden jerk nor sudden aberration ; the car simply jumped up and down like a greyhound running ; i. e., the motion was a continued oscillation or continuous rocking of the car as it sped along. It is not shown that this motion was unusual or abnormal or due to any unusual condition of the car, rails ■or roadbed, or of its management, so we cannot assume aught but that a car traveling at that rate naturally developed such motion. As the plaintiff has neither proved nor attempted to prove anything peculiar, we may then go a step further to assume that the accident was due to the continuous and normal jolting or jarring of the moving car (the greyhound motion), incident to its headway. But this was the risk which the plaintiff assumed, as was said in the Dochtermann Case (supra). And so it is not shown that there was any omission or commission pointing to legal neglect on the part of the defendant. Of course, it may be said that if the car had not gone so fast it would not have developed the “greyhound” motion. But, as I have said, there is no evidence that the speed was unusual (but the contrary), or that the speed was unlawful. And it was not incumbent upon the common carrier of passengers, when the plaintiff placed himself upon the step of the car, even though it permitted him to ride there as a paying passenger, to reduce the speed of its car from its usual and presumably lawful rate so that it might lose its then natural oscillation. I think that the learned trial court (White, J.) rightly dismissed the plaintiff. An examination of the cases cited in support of a reversal (McGrath v. Brooklyn, Queens Co. R. R. Co., 87 Hun, 310; Hassen v. Nassau Electric R. R. Co., 34 App. Div. 71; Brainard v. Nassau Electric R. R. Co., 44 id. 613 ; Henderson v. Nassau Electric R. R. Co., 46 id. 280; Lucas v. Metropolitan Street R. Co., 56 id. 405 ; Clark v. Eighth Avenue Railroad Company, 36 N. Y. 135; Ginna v. Second Avenue Railroad Co., 67 id. 596; Nolan v. Brooklyn City de N. R. R. Co., 87 id. 63 ; Graham v. Manhattan R. Co., 149 id. 336; Hastings v. Central Crosstown R. R. Co., 7 App. Div. 312; Dillon v. Forty-second Street R. Co., 28 id. 404) shows an essential difference, not only in the facts, of course, for all cases thus differ, but in the essential fact which brought home negligence to those defendants and which fact respectively has no similar basic fact in the case at [428]*428bar. But instead of paragraphic comments upon each.case, perhaps-I may thus more briefly indicate the discriminations: In McGrath'scase the accident was due to speed which produced violent and unequal motion. This was established by several witnesses, and people-were shaken around and off their seats. In Hassen's case the motor man should not have applied excessive motor power suddenly so as to-cause a sudden violent jerk. In Henderson's case the driver should not have driven his car so as to cause violent contact between the passenger and the van on the highway. In Lucas' case, when the driver intended to turn a curve at “ terrible speed,” the passenger should, have been warned at that point that he must increase his caution. In G leurlc's case the driver could. have stopped in time to avoid imminent collision and should not have driven on into danger. In. Ginneds case the switch was left open so that the car ran off upon it, producing a violent jolt or shock. In Holan's case the driver should not suddenly have whipped one of the horses so that it-plunged terribly under the blow, first forward arid then to one side. In Graham's case the defendant should not have disobeyed the-statute as to gates and the closing of them, nor should its servant have conducted himself so as to cause the crowd to sw;ay and jostle-the plaintiff so that he must grasp the railing, and hence suffer injury. As Martin, J., says: “ Even if the plaintiff assumed the ordinary risJc which attended riding upon the platform, he had aright to assume that the defendant’s servants would cause no unusual disturbance of the crowd, and that the cars were so constructed as-not to render his position dangerous from their proximity to each, other in passing over any portion of the road, or at least if such, danger existed that he would be apprised of it.” In Hastings' case: the driver should riot have given the horse a sudden blow with the-whip, which caused him to plunge forward so as to carry the car off" the track. In Dillon's case the driver should not have driven the car at a rapid rate when he struck the temporary turnout with violencé.
I have attempted thus to indicate the salient feature which, to the minds of the courts respectively, warranted submission of these cases to the jury. JBut where can I find the corresponding act or oniission. for a basis of negligence in the case at bar ? For I find upon the evidence "nothing but a natural motion, constant and incidental to the [429]*429■usual speed of cars in that vicinity, which is not shown to be unlawful, and which was well known to the plaintiff, for does he not say -that the car traveled as all other cars ? It must be kept clear in mind that the plaintiff does not testify to a sudden lurch or jump, but lie almost immediately describes the expression “ all at once the ear gave a jump and then I fell off,” by saying, “I couldn’t state exactly whether it jumped upwards or jumped ahead, but I know I fell off. ■* * * I didn’t say that it jumped ahead; she didn’t jump sideways ; she jumped up and down, I suppose, kind of going like this (illustrating) something like a greyhound running.” The plaintiff then defines his own word, and to my mind does not intend to -describe any sudden or abnormal motion of the car, but simply the jumping up and down, the oscillation — the “ greyhound ” motion — incident to and constant with the' “ going ” of the car at that rate of ;speed, which was continuous while the plaintiff was upon the car.
I do not understand the rule to be that there is any implied assurance that the car will be run so as to make it safe in the sense that .such assurance is insurance, but that the obligation is that of a high degree of care, and I do not believe that this obligation assures the plaintiff against the risks ordinarily incident to his place, due to the jars and jolts natural and normal to the progress of the car, when its rate of speed is not shown to be unlawful or negligent per se. I think that the plaintiff cannot be heard to say, “ I was thrown off the car ; therefore, the rate of speed was negligence,” and so insist that he has thereby given some proof of actionable neglect. (Francisco v. Troy & Lasingburgh R. R. Co., supra.) I do not construe the language of the JDochtermann case in any sense to the contrary. In the sentence : “ Now, while it is not negligence per se to stand on the platform of a street car, it is but fair and reasonable that the person so riding should assume the risk ordinarily incident to such a position,” etc., I think that the expression “ so riding ” uefers to a person standing on the platform, and as thus standing riding on the platform, i. e., that the force of “ so ” is confined to this sentence, and does not refer to the prior sentence so as to relate only to a person voluntarily and without necessity riding on the platform. Moreover, it may be said that this plaintiff voluntarily rode there. He exercised his free will when he chose to take the only position which was open to him. There was necessity for riding there [430]*430if lie wished to travel in that particular car, but, nevertheless, he voluntarily became a passenger in it. Finally, the plaintiff was not riding on a platform, but on a step, which the Court of Appeals in Nolan’s Case (supra) say was “a position palpably more, dangerous than riding on the platform.” Indeed, in Francisco v. Troy & Lansing-burgh R. R. Co. (supra) the court say that the court in Nolns case held clearly by implication that such a position was negligence per se.
The judgment should be affirmed, with costs.
Goodrich, P. J., and Bartlett, J., concurred; Hirsohberg, J.,. read for reversal, with whom Woodward, J., concurred.