The question to which we ultimately come in this case is the one whether plaintiff's complaint should have been dismissed or a new trial granted.
The defendant operates a trolley road. Under the care of a young woman who acted as their nurse or attendant the plaintiff and his brother became passengers on one of the defendant's cars. The two boys were respectively five and seven years of age. After they got on the car they became unruly and their attendant was unable fully to control them. Their unruliness first took the form of running out upon the rear platform of the car but the conductor speedily put an end to this by driving them back into the car and closing the doors. They then directed their movements to the front platform and several times, estimated by various witnesses at from three to six or seven, they went out upon this platform. The motorman not only made no effort to *Page 123 keep them off or to protect them from danger by driving them back or by closing either the vestibule doors or the doors opening upon the platform, but he rather encouraged their advances by laughing and talking with them. When the car was a short distance from the terminus and its speed slowed down the children ran out on the platform and, his brother having jumped off, plaintiff followed his example and was thrown back under the car and injured.
There was evidence from which a jury could find that the nurse or attendant was competent enough so that it was not negligence for the father and mother to intrust her with the boys. She had ridden on a trolley car three or four times before this with one boy but never with both of them. According to the evidence most favorable to the plaintiff a jury could also say that she made due efforts to control the boys and to get them back from the platform when they escaped from her and ran out and that on the final occasion when the accident happened she was in pursuit of them to bring them back. We are, therefore, all agreed that it cannot be said as matter of law that the parents were guilty of negligence in intrusting their children with the girl or that she was guilty of negligence in not trying to control them and keep them off the platform.
The more debatable question is whether the defendant was guilty of negligence in not foreseeing some such accident as finally happened and in not making some effort to protect the children from it. The majority of the court take the view that these questions must be answered in favor of the plaintiff.
In view of the mischievous disposition which the children displayed in running out on the platform we think a jury could fairly say that the defendant's employee ought to have recognized that the situation which he was permitting to arise was potential in danger to the children and that they were liable either to fall from *Page 124 the platform or to do just as they did — jump from it as the car approached its terminus and the speed was abated. It did not require unreasonable foresight to see that a prankish child running back and forth as these children did might finally fall into trouble either through slipping or deliberately jumping from an open platform.
Reaching this decision of this question the next one becomes the one whether defendant, in the exercise of reasonable care, ought to have done something to avert danger and prevent such an accident as happened. This question in the discussion of counsel is largely made to depend upon the answer to the inquiry whether the motorman ought to have closed either the platform or the vestibule doors. Counsel and the court seem to have settled upon this step as the one to be taken, if any was, and it is argued by the defendant that it was under no obligation to have vestibule doors and was under no obligation to keep either set of doors closed. This, we think, places too narrow a phase upon the question of defendant's liability. The real and full question is whether the defendant's employees when they saw two young children escaping from their attendant and running about the car ought to have done some reasonable thing to prevent such an accident as happened. It was not bound to take the particular step of closing the vestibule doors or of closing the doors leading to the platform or of driving the children back into the car or of putting them off of the car. Undoubtedly it had the choice of any of these methods which would be effective, but we think that a jury had the right to say that when it failed to exercise any of them it fell short of reasonable care. Of course a railroad is not bound to construct or operate its cars for the purpose of safely carrying unruly children or drunken adults. They are both obnoxious to public convenience and proper transportation. But when it elects to take on board of one of its cars such a passenger it is bound to use reasonably *Page 125 adequate care for his protection or else to eject him from the car. (Fardette v. N.Y. S. Ry. Co., 233 N.Y. 660.)
In addition to these questions involving the merits, two other questions arose in connection with the admission of some evidence and a charge made by the trial judge.
Plaintiff was permitted to give evidence that prior to the accident an order was posted in the defendant's barn which provided, according to one witness, "that these doors (referring to the doors opening upon the platform) should be closed to keep people from riding on the platform under suspension of the motorman," and which, according to another witness, read "that any motorman found with his doors open allowing passengers in or out the front, would be suspended." This rule was admitted in evidence for the purpose of proving negligence on the part of the defendant toward this plaintiff, but we think improperly so.
In the first place there may be a question whether a private rule such as this promulgated by an employer for the guidance of his employees is evidence against the former. As is well argued by respondent's counsel the more cautious an employer is and the more carefully he regulates the conduct of his employees, even though far beyond what the law requires, the more subject he will be to liability because some employee fails to obey the rule. But however this may be we think the rule on its face shows that it had no reference to the prevention of such an accident as was the present one. Manifestly the rule was designed to prevent interference with the motorman caused by passengers standing upon his platform or going in and out of the car by that method. The evidence in our judgment was incompetent.
The trial judge made a clear mistake in his instructions to the jury concerning the failure of the defendant to call one of two witnesses. This witness legally was *Page 126 a stranger to the defendant. She was called on a prior trial and was in court on the present trial. Defendant's counsel explained his failure to call her by stating that he believed that some of the evidence which she had given on a prior trial was untrue and that, therefore, he believed it was his duty to refrain from calling her again. But independent of this explanation she was in court as much subject to the call of the plaintiff as of the defendant and yet, under these circumstances, the court charged in respect of her "that where there is a witness available or under the control of a party in a case, and that party having control of the witness, having such a witness available, fails to call such a witness who is competent to give material evidence upon an issue in the case, the jury may say that if such a witness were called the testimony given by that witness would be unfavorable to the party having such a witness under its control and failing to call him or her." And farther that the explanation given by defendant for not calling this witness "should be taken into consideration and given such weight as you think they are entitled to when you consider the bearing of that, the failure to call those witnesses in this case." Defendant's counsel having objected to this charge the plaintiff's counsel endeavored to persuade the trial justice to withdraw it, but he declined to do this or to alter what he had said. In this he was in error. No such rule as was stated by him applies to such a situation as the one which was presented in respect of this person. (Hayden v.New York Railways Co., 233 N.Y. 34.)
Neither was the error one which we should regard as immaterial. That this case is not a clear one for the plaintiff on its merits or free from questionable features is sufficiently evidenced by the fact that a prior verdict in favor of the plaintiff was set aside as against the weight of evidence (191 App. Div. 770), and when, under such conditions, the trial court permitted the plaintiff to *Page 127 have all the benefits of favorable evidence simply because the defendant did not call a witness who was just as available to the plaintiff as to it, it could scarcely fail to exercise a substantial influence upon the jury.
We think, therefore, that there was ample reason for reversing the judgment but, feeling as we do about the right of the plaintiff to go to the jury, we are brought to the conclusion that the judgment should have been one of reversal and providing for a new trial rather than dismissing the complaint, and the judgment should, accordingly, be modified, with costs to abide event.
HOGAN, POUND, CRANE and ANDREWS, JJ., concur CARDOZO and McLAUGHLIN, JJ., dissent.
Judgment accordingly.