This action has been twice tried.' Upon the first trial a nonsuit was directed at the close of the plaintiffs’ evidence, and from the judgment entered thereon an appeal was taken to the General Term of the late fourth department, where the judgment was reversed and a new trial ordered.
Upon the second trial the case was submitted to the jury and .a verdict was rendered in favor of the plaintiffs. Judgment was thereupon entered from which, as well as from an order denying the defendant’s motion for a new trial upon the minutes, this appeal is brought.
Upon the former appeal an elaborate opinion was written by the learned presiding justice of this court, in which the facts of the case as they then appeared were carefully analyzed ; the various authorities relied upon by counsel were most exhaustively and critically' reviewed, and the conclusion was reached that no error was commit^ ted by the trial judge in granting the nonsuit. (Sias v. Rochester R. Co., 92 Hun, 140.) It was decided, however, by a bare majority of the court that the question of contributory negligence, to the- discussion of which the opinion was principally confined,, should have been submitted to the jury, and a new trial was, therefore, ordered.
It seems to have been assumed by the learned counsel for the respondents that the deference which must be accorded to'a decision of the General Term necessarily requires an affirmance by this court of the judgment and order appealed from, whatever view we may entertain respecting the conclusion reached upon the former hearing. Such a decision is unquestionably entitled to the utmost respect; and, while not doubting our right so to do, we should ordinarily be quite slow to reverse the same, even though we might entertain serious doubt as to its correctness; but in this particular instance we feel at liberty to disregard the precedent which has been thus established, for the following reasons: (1) The former decision was not unanimous, but simply reflected the views of a bare majority of a divided court;. (2) 'under our present system of judicature it is designed that this court shall be the ultimate tribunal in cases of this character, and it would be doing violence to the jflain intent of that system to render a pro forma decision, merely for the purpose of advancing the case .to another forum ;• (3) the facts as they *508appeared upon the former trial have been somewhat reinforced by the additional evidence -furnished by the defendent• upon the second trialand (4) .we are fully persuaded that the" views expressed in the dissenting opinion of Hardin, P. J., ought to prevail. (See, also, Jonas v. L. I. R. R. Co., 20 Misc. Rep. 176.)
Having thus declared ourselves, it is, perhaps, unnecessary to say anything further respecting the case, and yet we cannot refrain from referring briefly to one feature thereof.
Assuming that there was sufficient evidence of the defendant’s negligence in permitting the tree with, which the deceased came in contact to remain standing in- such close proximity to the track upon which its cars were run, to raise a question of fact-for the jury, we, are, nevertheless, satisfied that it has been demonstrated beyond all question that the accident would not have happened and the ' decedent would have suffered no injury had he not been utterly regardless of his own safety; for the undisputed evidence in the case shows that he had been twice over- this very portion of the ■defendant’s road on the day of the accident, on one of which occasions he rode upon the platform or step of a car where he might have seen, if he had been at all mindful of his surroundings, that there were numerous trees, poles and other obstructions standing between the outer rail and the street curb. And yet, .with this fact thus.brought to his notice,- he leaves his seat in the car where a wire screen had been so adjusted as to render it absolutely impossible for a person to come into contact with any of these objects, and in order to locate or witness a fire in that vicinity, to which some person had called the attention of the passengers, steps out on to the platform, ■extends his head beyond the side of. the car, and is at once hit by a tree and thrown "to the ground.
"We have studied this case with some care, as well as curiosity, to ascertain upon what theory this conduct, upon the part of the deceased,, can be reconciled with the requirement of the law, that a person must establish affirmatively his own freedom from negligence before he can visit the consequences of a personal injury upon another; but we are compelled to admit that thus far our efforts have produced very meagre results in the direction indicated. Indeed, if we correctly apprehend the respondents’ position, it is not denied that the plaintiffs’ intestate was somewhat indifferent to *509liis own personal safety; hut it is said that, notwithstanding this fact, the defendant is liable because its conductor, who was standing upon the platform of the car, did not warn the deceased of the danger to be apprehended. We cannot, however, regard this position as tenable, in view of the conceded facts of the case. For, as was said in the opinion to which we have already referred: “ There is no evidence in the case before us to indicate that after the intestate had pushed his head beyond the line of the car any employee of the defendant had an opportunity to withdraw his person from the attitude he had assumed, by thrusting a portion of his body beyond the line of the car.” (92 Hun, 140, supra.)
As described by several persons who were in thé caz-, the accident was doubtless the. woz-lc of an instant. It'was said by one of the plaintiffs’ witnesses that McKee,' the decedent, “ had just about time to get' up and go out on the platfonn and step down there — just about time to walk out and be struck,” and this would seem to indicate pretty cleazly that little or no opportunity was affoz-ded the conductor to appreciate the sitzzation, much less to take measures to relieve the decedent frozn the dangerous position in which he had placed himself. But, without dwelling longer upon the facts or the law of the case, it only remains to record formally what we have already indicated, that, in our judgment, this case ideally presents no issue of fact, so far as the question of contributory negligence is concerned, and, therefore' it is one which ought to be withheld from the juzy.
Judgment and order z-eversed and a new trial granted, with costs to' abide the event.
All concurred, except Follett and Ward, JJ., who dissented upon the ground that the question of contributory negligence was one. of fact and not of law.
Judgment and order reversed arid a new trial ordered, with costs to abide the event. .