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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 675 This cause was well tried. The questions of fact were properly submitted to the jury; and both parties had the benefit of a clear and accurate exposition of the law in its application to the various issues involved. There is a full and able discussion of all the material questions in the opinion delivered by Judge EMOTT in the court below, and in the views then expressed we entirely concur. (32 Barb., 398.) It will be sufficient, therefore, to state briefly our general conclusions.
That the defendant was guilty of negligence is obvious. The engineer, charged with the safety of some hundreds of human lives, drove a train of cars, in broad daylight, at the rate of ten or fifteen miles an hour, against obstructions lying directly across the track, and visible, as he concedes, for a distance of more than a quarter of a mile before he reached them. His excuse for the act, given immediately after the collision, was that, though he saw the obstructions in season to stop, he thought he could knock them out of the way. If he was in a condition to be indifferent and reckless in regard to his own safety, he had no warrant for exposing the lives of others to the hazard of an experiment so foolhardy and perilous.
There was no negligence on the part of the plaintiff which contributed to the injury. It is claimed, in behalf of the appellant, that, irrespective of the statute, it is negligenceper se on the part of a passenger to stand on the platform of a moving car; and that he thereby forfeits all claim to redress against the carrier for injury by culpable negligence; and this, though his act in no manner contributes to such *Page 676 injury. In respect to each branch of the proposition, the law is otherwise.
There is no rule of the common law which makes it the duty of the passenger to the carrier to select a position in the vehicle least exposed to danger through the wrongful act of the proprietor. A seat on the outside of a stage coach may be more hazardous than an inside seat if the driver negligently overturns it on a pavement or a hill side; but the selection of that position is neither negligence per se nor tributary in a legal sense to the injury.
In the present case, it is manifest that the plaintiff was not in fault. Through the absence of the usual employés, he and his son were compelled to put their own baggage on the cars. The train started immediately, and they had no choice but to take the nearest coach. They paid the conductor for seats, but found, on examination, that all were occupied. They and others were, for that reason, compelled to stand; and the conductor neither rendered them any aid, nor informed them that there were vacant places in the rear cars. The speed of the train was such as to render it hazardous to pass from car to car, and the gangways being occupied by ladies and others in quest of seats, the plaintiff and his son took such standing places as were least inconvenient and nearest at hand. Both were injured by the collision, one being inside the cars and the other on the platform at the time it occurred. It may well be said that, if they had been furnished with the accommodations for which they were required to pay, both would have escaped unharmed; but they were clearly guilty, in this regard, of no breach of duty to the defendant.
Their position, whether judiciously or injudiciously selected, so far as they were concerned, was lawful under these circumstances as between them and the company; and, in legal contemplation, it neither caused nor contributed to the injury. The law on this subject was settled in the leading case ofCarroll v. The New Haven R.R. Company, in which the question was directly involved; and the judgment of the Superior Court in that case was subsequently affirmed in this court. (2 Duer, 571; 6 id., 415, 416.) It was very properly *Page 677 held in the case of Colegrove v. The New Haven and HarlemCompanies, that it did not necessarily follow that no fault of the plaintiff could excuse the defendants from liability, unless it had the effect to produce the collision that caused the injury; but in that case, as in the other, the court affirmed the judgment and sustained the plaintiff's recovery, the jury having been instructed that "if the company undertake to carry in any one car more than they can accommodate with seats, so that some are of necessity forced to stand upon the platform, and have no opportunity before the train is under way to find seats in other cars, such persons are there by permission of the company, and are lawfully there; and the company can claim no exemption under the statute, no matter how conspicuously their notices may be posted in the interior of the cars." (20 N.Y., 492; 6 Duer, 382.) The rule, as settled in the case of Carroll v. The New HavenR.R. Company, has recently been reaffirmed by a unanimous decision of this court. (Halsey v. Earle, 30 N.Y., 208.)
The Supreme Court was also right in holding, that under the statute the defendant was not absolved from liability; if the jury found from the evidence as matter of fact, that the plaintiff had neither time nor opportunity to proceed to the rear cars in search of a seat, without exposure to hazard in passing from platform to platform while the train was in rapid motion; that there was no seat unoccupied in the coach on which he was riding; and that he was guilty of no actual want of care in the selection of a position in which to stand, until he could obtain the accommodation to which he was entitled.
The statute, under which the defendant claims absolution, provides that "in case any passenger shall be injured while on the platform of any car in violation of the printed regulations of the company posted up at the time in a conspicuous place, inside of its passenger cars then in the train, such company shall not be liable for the injury, provided the said company atthe time furnished room inside its passenger cars sufficient forthe proper accommodation of its passengers." (Laws of 1850, 234, sec. 46.) When the *Page 678 company fails to comply with this condition, it must find other grounds of immunity, if it would avoid responsibility for its wrongs. It is not sufficient that there may have been proper accommodations in other cars not accessible to the passenger; nor that he might possibly have procured for himself the accommodations which the defendant failed to furnish, by displacing the person of one and the property of another, in the exercise of an authority which appropriately belonged to the conductor. He owed no such duty to the defendant, and he forfeited none of his rights by submitting to a temporary inconvenience, to which he was subjected against his wish and through no fault of his own.
The judgment should be affirmed.