I dissent from the conclusion of the court that the rule of liability applicable to the defendant under the circumstances of this case is the failure to use ordinary care, for I think the true rule is that the defendant was bound to use the utmost care to protect its passengers, wherever they were riding by its invitation, or with its knowledge and consent. The requirement of "utmost care" does not mean that the carrier insures the safety of its passengers, but such a degree of care as is practicable without incurring expenses that would throw the company out of business; or, in other words, the highest degree of care consistent with the carrier's undertaking.
The plaintiff was a passenger, but not being able to get inside of the car he was compelled to stand on the running board or not ride at all. The running board was full of people, and the conductor collected fare from the plaintiff *Page 369 after he had taken this position and the car had started, without any warning, admonition or suggestion. It was the custom of the defendant, well established and of long standing, to allow passengers to ride in that situation under such circumstances. The legal effect of this custom was the same as if the defendant, through a duly authorized agent, had told the plaintiff that he could ride on the running board. (Clark v. Eighth Ave. R.R.Co., 36 N.Y. 135, 136.) It is known of all, and both parties concede, that it is more dangerous to ride in that position than when inside of the car, yet, according to the view of the majority of the court, the defendant, after inviting the plaintiff into a situation of danger, was not required to use a degree of care commensurate with the risk, but was at liberty to exercise less care than if the passenger had been in a place of comparative safety. In other words, the rule is to be that the greater the danger the less the care. The rule of utmost care is to be applied to all passengers on board a car, except those habitually permitted to ride where it is somewhat dangerous, and ordinary care seems to be good enough for them. This does not impress me as reasonable, and there is no case that requires us to so hold. The Cattano case is relied upon, but the language quoted from the concurring opinion in that case was not assented to by another member of the court. (Cattano v. Metro. St. Ry.Co., 173 N.Y. 565, 573, 578.) In the Graham case it was held, as it had previously been held in the Merwin case, that "the defendant, by taking him (the plaintiff) upon the train for the purpose of transporting him as a passenger upon the platform, was bound to exercise a high degree of care to make the platform safe for his occupation, and he was entitled to assume that it would." (Graham v. Manh. Ry. Co., 149 N.Y. 336, 342; Merwin v.Manh. Ry. Co., 48 Hun, 608; 113 N.Y. 659.)
"If by reason of a railway train being crowded, some of the passengers are obliged to stand upon the platform, and if the carrier receives them and undertakes to transport them in that position he must exercise all additional care commensurate *Page 370 with the dangers surrounding them in that situation." (3 Thompson on Negligence, § 2737.) Even upon the assumption that the rule of utmost care applies only to those appliances and measures of safety which the passenger of necessity must trust wholly to the carrier, still the rule applies to this case because the negligence was in the means of transit, after the plaintiff had been accepted as a passenger and was being transported in consideration of the fare he had paid. He rode where the company invited him to ride and he could not protect himself from injury by the car which was run so near the car he was on as to knock him off. He was injured because at the place where the accident happened the tracks were too close together to permit passengers to stand on the running board in safety. The plaintiff did not know of the dangerous proximity of the tracks, but the defendant did. He necessarily had to trust wholly to the company for protection from such dangers, for it was beyond his power to control the agencies of transportation and those agencies inflicted the injuries of which he complains. I think that the charge of the learned trial justice, when all parts are read together, involved no error and that the judgment appealed from should be affirmed.
CULLEN, Ch. J., O'BRIEN and HAIGHT, JJ., concur with EDWARD T. BARTLETT, J.; HISCOCK, J., concurs with VANN, J.; CHASE, J., not sitting.
Judgment reversed, etc.