This action was brought by the plaintiff as the administrator of his deceased son, to recover damages on account of his death caused, as alleged, by the negligence of the defendant. The answer raised the usual issues in such cases.
On July 3d 1899, the decedent, a young man about twenty years of age, was a passenger on one of the cross-town horse cars of the defendant running on 34th street in the city of New York. The car was crowded inside and out. All the seats were occupied; there was no standing room in the aisle, *Page 568 and on the front platform where the decedent was riding as many as eight persons were standing. As one witness put it, "The front platform apparently had no room for anybody else." The decedent had been riding on that platform for five or six blocks, and just before the accident he stood next to the step and near the driver. As the car was going very fast on a down grade the driver, in his efforts to apply the brake, "made room for himself" by backing and pushing and thus jostled the crowd and shoved the people around so that the decedent was thrown off and instantly killed. The jury could have found these facts, although they could have found, as certain witnesses for the defendant testified, that the decedent met his death by stepping off backward and falling under the wheels. The defendant's case might have been stronger if the driver or the conductor had been called to corroborate its theory of the accident, but neither was put upon the stand.
Were these facts, which the jury is presumed to have found, sufficient to warrant the inference of actionable negligence on the part of the defendant and freedom from contributory negligence on the part of the plaintiff's intestate?
Assuming that no unnecessary force was used in operating the brake, the primary question is whether the defendant was negligent in allowing the platform to become so crowded that the driver could not use the brake without pushing away those standing near him and thus crowding off some one on the outside. 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. As it did not provide railings to keep them from being crowded off in case of a sudden movement in the crowd, it was bound, as the jury at least might have found, to see that the crowd did not become so dense that the driver could not put on the brake without pushing some passenger off. If there had been vacant seats or even standing room inside the case would be different, for then the passenger voluntarily standing on the platform might be held to run his own risk. When a carrier of passengers fails to provide either seats or standing room inside its cars so *Page 569 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 by an employee in operating the car without presenting a question of fact for the jury as to its negligence in the premises.
As was said by FOLLETT, Ch. J., in Lehr v. Steinway Hunters Point R.R. Co. (118 N.Y. 556, 561): "The exposure of a passenger to a danger which the exercise of reasonable foresight would have anticipated and due care avoided is negligence on the part of a carrier. It clearly appears that the defendant undertook to carry more passengers than could sit and stand inside the car, and that both platforms and their steps were filled to their utmost capacity. The actions of persons so crowded together, and the great force which they exercise, sometimes almost unconsciously on each other, is understood by carriers of passengers and their employees, and the court would not have been justified in nonsuiting the plaintiff and holding, as a matter of law, that the exercise of reasonable foresight would not have led the defendant to anticipate that overcrowding this car and its platforms might render accidents like the one which befell the plaintiff probable. * * * Whether the defendant negligently caused the injury to the plaintiff, and whether he negligently contributed to his own injury were, under the evidence, questions of fact for the jury."
In Willis v. Long Island R.R. Co. (34 N.Y. 670, 683) the court said: "As the defendant in the present case neglected that duty (to furnish seats inside its cars), and the plaintiff rode on the platform because the company did not provide him with suitable and reasonable accommodations within the cars, the circumstance of his being in that position when he was injured does not relieve the defendant from liability."
In Merwin v. Manhattan Ry. Co. (48 Hun, 608; 113 N.Y. 659) both cars and platforms were so crowded that it was almost impossible for the decedent to get on. As the train *Page 570 approached a station where he intended to alight, the passengers began to come out on the platform in order to get off, and owing to the pressure he stepped back, fell between the platforms and was fatally injured. It was held that the defendant ought to have foreseen that such an accident might happen and that the omission to provide suitable safeguards against its occurrence was actionable negligence. It was further held that even if it was obvious to the decedent that he would not be able at once to find a seat inside the car, yet the defendant, by taking him 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 and secure for his occupation and that he was entitled to assume that it would do so.
All the cases thus far alluded to were cited with approval in the recent case of Graham v. Manhattan Ry. Co. (149 N.Y. 336), in which it was held that where a passenger boarded an elevated railroad train and was compelled to ride upon the platform because the crowded condition of the car prevented him from occupying any other position, and he was injured while trying to save himself from being pushed from the platform by a movement of the crowd caused by acts of an employee of the company, it was a question of fact for the jury whether either party was guilty of negligence.
Even when there were vacant seats inside, and a passenger was smoking upon the front platform as permitted by the company, and was injured by the negligence of the defendant, it was held that the question of contributory negligence was one of fact for the jury. (Nolan v. Brooklyn City N.R.R. Co., 87 N.Y. 63. See, also, Ginna v. Second Ave. R.R. Co., 67 N.Y. 596; Spooner v. Brooklyn City R.R. Co., 54 N.Y. 230; Edgerton v. N.Y. Harlem R.R. Co., 39 N.Y. 227; Clark v. Eighth Ave. R.R. Co.,36 N.Y. 135.)
We think that these cases, and others which might be added, demonstrate that the trial judge properly submitted to the jury the usual questions relating to the negligence of the *Page 571 defendant and the contributory negligence of the plaintiff's intestate.
The argument is made that if it was negligent for the company to permit the platform to become overcrowded, it was negligent for the decedent to stand there. This argument implies that the decedent knew as much about the situation and danger as the defendant, whereas it was not shown and cannot be presumed that he was ever on a street car before, or that he was acquainted with the grade, the method of operating the brakes, or with any fact, aside from the crowded condition of the platform, which might expose him to danger. The company, of course, is presumed to have known the situation as it actually existed. Moreover, the argument ignores the legal obligation of the defendant, upon which the decedent had the right to rely, to exercise a high degree of care to "make the platform safe and secure for his occupation." Thus it is apparent that the argument, so plausible upon its face, is founded upon a presumption which does not exist and disregards a legal obligation of the defendant upon which the decedent had a right to rely.
The counsel for the plaintiff, in hastily summing up before the jury, inadvertently went beyond even the wide latitude allowed in such addresses and charged, in substance, that the defendant maintained a school for perjury to instruct witnesses how to swear falsely in its interest.
A verdict should be found only on the law and the evidence. Appeals to prejudice or passion, and the statement of facts neither proved nor presumed, have no place in a trial conducted according to the rules of the common law. The statement in question was calculated to arouse prejudice and lead the jury away from the evidence. It was not warranted even if similar remarks had been made by the defendant's counsel, which is suggested but not shown by the record. It would have justified the trial court or the Appellate Division in exercising the great power of dealing with the facts, which is intrusted to them but not to us, by setting aside the verdict and granting a new trial. The Court of Appeals, however, can reverse *Page 572 only on an exception taken to a ruling of the court, and no exception relating to the subject raises an error that we can review.
The plaintiff's counsel was permitted to finish his address without any objection. The court was not asked to take any action or make any ruling until after the charge had been delivered. The remedy of the defendant was to move promptly for directions to counsel to desist, and to the jury to disregard. As was said by the Supreme Court of the United States: "It is the duty of the defendant's counsel at once to call the attention of the court to the objectionable remarks and request its interposition, and, in case of refusal, to note an exception." (Crumpton v. UnitedStates, 138 U.S. 361, 364.)
The defendant's counsel, however, did not ask the court to interpose, or to tell the jury to pay no attention to the mischievous remark, but waited until after the charge, when he called attention to the subject for the first time by excepting to the language used by counsel in summing up. This was not the subject of an exception, for an exception can properly be taken only to a ruling of the court, or to a refusal to rule. The court should first be asked to rule in accordance with the law which the counsel deems adapted to the occasion, and in case of refusal an exception will lie. (Dimon v. N.Y.C. H.R.R.R. Co.,173 N.Y. 356, 358.)
Finally, however, the defendant's counsel moved to withdraw a juror on account of the improper observation, but the motion was denied and he excepted. This was not the proper remedy, for leave to withdraw a juror is a favor, not a right, and has always been held to rest within the sound discretion of the court. Matters of discretion are reviewable by the Appellate Division, but not by us. As was said by Judge EARL in a late case: "It is now claimed that the trial judge erred in permitting the case to go before the jury which had heard the objectionable remark. The remark was undoubtedly an improper one, but the refusal of the court to grant the defendant's motion (to withdraw a juror) was not a legal *Page 573 error reviewable in this court. The motion was addressed entirely to the discretion of the court, which could grant or refuse it, taking into consideration the circumstances surrounding the case." (Chesebrough v. Conover, 140 N.Y. 382, 388.)
I find no error in the record that we have the power to correct, and hence the judgment appealed from should be affirmed, with costs.