The defendant's evidence that plaintiff's intestate, Cattano, fell while attempting to step *Page 574 off the car was contradicted by one of plaintiff's witnesses on cross-examination, who said that the brakeman "forced his way to put on the brake, and almost pushed me as well as pushing the young fellow off the other end." Considered with the rest of the testimony of this witness and the testimony of plaintiff's other witnesses, the conclusion might well be reached, I think, that the witness did not see Cattano pushed off, but inferred that he must have been, from the general situation and the result of it. The jury, however, had the right to give such value to his evidence as they deemed it worth, and we cannot say but they gave to it entire credit, and, therefore, must assume that they did.
Assuming the jury did give entire credit to this witness' testimony, we find that Cattano was pushed off the platform by the surging of others against him or by the force of the brakeman's arm as he applied the brake to check the car on a downward grade. There is no evidence that the brakeman did either more or less than his duty, or that what he did was done in an unusual way. This statement is quite sufficiently supported by the comment of the distinguished counsel for the plaintiff in summing up to the jury: "Who says the driver was seriously at fault? We haven't intimated that," and this he followed with a statement that there was fault in overcrowding the platform.
Well, if there were fault in overcrowding, did not Cattano contribute toward it? There were at the most eight men on the platform, and he furnished, therefore, one-eighth of the overcrowding. And he continued to furnish it after he had a chance to go in the car, according to the plaintiff's witness Peck, who stood beside and talked with Cattano on the front platform until the car reached Lexington avenue. He says: "I went into the car at Lexington avenue. I went into the car when people got off and made room on Lexington avenue. * * * People were going out of the car and the platform was being relieved. Then I went into the car. * * * I probably went in three or four feet. People crowded in after me. There were people between me and the door of the car *Page 575 at the time." As Cattano stood beside Peck, he could have gone into the car and been one of those standing behind him, but he elected to stay where he was, swelling by one-eighth or one-sixth the crowd on the platform. And it is now contended that the law permits a jury to say that in doing so he was not guilty of negligence, but at the same time to say that the conductor — who does not appear from the evidence to have been on the platform prior to the accident — was guilty of negligence in permitting the platform to be crowded.
In other words, one who merely permitted overcrowding is negligent in not apprehending danger therefrom, while one who contributed his person to the overcrowding is free from negligence contributing to his own injury.
Such a result is clearly illogical and ought not to stand unless commanded by authority covering precisely such a state of facts.
In Lehr v. Steinway H.P.R.R. Co. (118 N.Y. 556) the plaintiff was forced from a platform and injured and a recovery was sustained. But the facts were different from this case. The plaintiff entered the car and secured a seat for his wife, who was lame, and then retired to the rear platform, where, owing to the crowd, he was obliged to stand on one of the steps. Seeing that the front platform was less crowded he asked the conductor to stop the car so he might go to the front platform. Receiving no reply, he stepped from the rear platform at about the same time as the conductor and walked to the front platform, his disclosed purpose and his action not being objected to by either the conductor or driver. The front platform was so crowded that he did not fully accomplish his purpose, as he only succeeded in getting one foot on the platform, the other being on the step. So he clung with his right hand to the rail of the dash and with his left to the handrail at the end of the body of the car. A movement of the passengers broke the hold of his right hand, which he was unable to regain. Before he fell, however, he called upon the driver to stop the car, which was not done until after he had fallen and the car had passed over one of his legs. This court *Page 576 said: "The evidence in respect to the speed of the car, and the circumstances under which the plaintiff attempted to enter on the front platform, would not have justified the court in ruling, as a matter of law, that the plaintiff contributed to his own injury by making the attempt."
A very different case from this, where, as we have seen, Cattano rode upon the front platform for a long time with full knowledge of the extent of the crowding, making no attempt to enter the car when the man standing next to him and others on the front platform did so.
In Willis v. Long Island R.R. Co. (34 N.Y. 670) the plaintiff, while riding upon a platform was injured by a collision, a danger which he had no reason to apprehend, and, therefore, it could not be said, as a matter of law, that he was careless in not guarding against it.
In Graham v. Manhattan Ry. Co. (149 N.Y. 336) while the plaintiff's injury would not have happened had not the platform been crowded, yet it would not have happened had not the defendant's employee had an altercation with a passenger and struck him, the effect of which was to cause a movement of the crowd upon the platform which tended to crowd the plaintiff from the train. In order to save himself he made a quick, involuntary movement with his left hand to grasp the railing behind him, and his arm was caught between the railing of the car upon which he was riding and those on the car immediately in the rear, as they came together in rounding a curve. And this court properly held the action of the employee in striking the passenger to be an element tending to render the question of contributory negligence one for the jury, inasmuch as he had a right to assume that the company's servants would cause no unusual disturbance of the crowd, and further that he had a right to assume that the company's 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.
In Nolan v. Brooklyn City N.R.R. Co. (87 N.Y. 63) the plaintiff while standing on the front platform of a street car *Page 577 — no other person being on it except the driver — was thrown off because of the action of the driver in suddenly whipping one of the horses, which plunged under the blows, occasioning a jar which, coming without warning, threw him from the car. The testimony showed that the defendant was accustomed to allow men smoking to ride on the front platform, and plaintiff went there because he was smoking. The court necessarily held that the plaintiff was not guilty of contributory negligence as a matter of law in accepting and acting upon the custom of the defendant.
In Ginna v. Second Ave. R. Co. (67 N.Y. 596) the car was so crowded that plaintiff's intestate could not enter it without great discomfort and so he stood upon the platform with his back against the body of the car. The platform was not crowded, but a switch having been left open the car ran off upon it, producing a violent jolt, which threw the plaintiff's intestate and the other passengers who were standing on the platform off the car. The negligence of the defendant was conceded, and, of course, it was held that the question of contributory negligence was for the jury, who would not have been justified in holding that the plaintiff's intestate could have anticipated an open switch.
It will readily be seen that the authorities above referred to — and they are the leading ones brought to our attention — are all readily distinguishable from the one under consideration.
In this case the platform was crowded with men who, rather than wait for the next car, were taking their chances on a crowded car, as men do every day; and if it be negligent for a company to permit men to crowd upon a platform because some one may be hurt if the crowd surge for some cause, it is equally negligent on the part of the man who, in possession of his faculties, insists upon adding his person to an already overcrowded platform.
It is impracticable in our large cities to furnish seats for all persons in the street cars during what are known as "rush hours," and during those hours men insist upon riding *Page 578 upon platforms in order to gain time, and in so doing they contribute something toward the risk of injury to some one, in case of the surging of the crowd from some one of the many causes that arise from time to time; and if one of the last to crowd himself on, obtaining an insecure and unsafe position, be injured, without any other fault on the part of the company than that it permitted a crowd on the platform — which is this case — then there should not be, it seems to me, a recovery by the man who insisted upon being a part of the crowd.
Whether there be overcrowding on a platform is a question of fact for the jury, but they are not to determine the legal effect of overcrowding; that is a question of law for the courts.
It has not been held so far that it is a negligent act on the part of a street railroad to permit passengers to ride on the front platforms of cars, or to allow as many of them to ride there as can get secure positions; and I think it should not be so held in view of the necessities of the case. But if my view should not obtain, then it follows it should be held, as matter of law, that to permit the platform and steps to be crowded constitutes negligence, leaving the jury in case of controversy on that point to determine whether it was crowded. And if the fact of overcrowding be conclusively established — as in this case — it must follow that the persons on the steps or on the outside of the crowd who are thrown off contribute, as matter of law, to the result, for they not only helped to create the overcrowded and dangerous condition, but in addition placed themselves in the most hazardous of all the positions on the platform.
The judgment should be reversed.
O'BRIEN and MARTIN, JJ. (and CULLEN, J., in memorandum) concur with VANN, J.; HAIGHT, J., concurs with PARKER, Ch. J.; GRAY, J., not sitting.
Judgment affirmed. *Page 579