The plaintiff was on July 30, 1895, a passenger upon a cable car operated by the defendant. As the car was going around a curve from Fifty-third street to Ninth avenue the plaintiff was seated in the car, and another passenger, who was in the act of' entering the car from the platform, was thrown upon the plaintiff by a violent jolt or jerk of the car from which she sustained injuries. There was no evidence as to the speed at which the car was going around this curve, or that the conductor failed to warn the passenger who was thrown upon the plaintiff as the car was approaching the curve. The sole fact relied upon by the plaintiff *403is that as the car rounded the curve a passenger attempted to enter the car, when by a violent jerk he was precipitated upon the plaintiff. The court submitted to the jury the question as to whether the car was going at an improper or unusual rate of speed, who found a verdict for the defendant. The main question presented is as to the refusal of the court to charge that “ although such common carrier is not an insurer of the safety of passengers, it is its duty to use a very high degree of care and skill to prevent any injuries to them.” This the court refused and charged the jury that “ the measure of duty on the part of the defendant’s servants was to conduct themselves with reasonable care under all the circumstances with a view of protecting their passengers,” as applicable to the particular facts in this case, basing such instruction upon the cases of Stierle v. Union Railway Co. (156 N. Y. 70) and Ayers v. Rochester Railway Co. (Id. 104), and we think that in view of the decision of these cases the charge was correct. In the Stierle case the court said that “ The obligation of carriers of passengers to exercise the highest degree of care which human prudence and foresight can suggest only exists with respect to those results which are naturally to be apprehended from unsafe roadbeds, defective machinery, imperfect cars and other conditions endangering the success of the undertaking. * * * In every case, the degree of care to be exercised is dependent upon the circumstances, and, if the accident is attributable to the existence of defects in the road, or in the mechanical appliances availed of for the operation of the railroad, by reason of which there was a possibility of loss of life or limb to the traveling public, the strict rule requiring the highest degree of care and of human skill would be applicable.” In that case the plaintiff was injured because of the alleged negligent .manner in which the driver of the car attempted to switch his car from one track to another to cross the Harlem river bridge, and it was held that under those circumstances the defendant was only liable for the failure of the driver to use that skill and care which would be required by an ordinarily careful and prudent man. In this case the plaintiff was injured by a passenger falling on her, which fall was caused by a jerk in the car rounding a curve, and the same rule as to the degree of care would seem to be applicable. In the Ayers case the plaintiff *404was a passenger and after she had got upon the car and was about to take a seat it gave a sudden jerk which threw her back on the seat and twisted her knee. It was held that in the absence of evidence as to the speed of the car, or that there was an excess of power used while passing the curve, there could be no recovery, and applying this rule it would seem that there was no evidence of negligence in this case. There was nothing here to suggest that this passenger, in entering the car when he did, would cause an injury to the other passengers. In the absence of excessive speed, or the application of more power than was necessary to round this curve, there would certainly be no evidence to justify the jury in finding that the defendant was negligent, and the jury having found that the speed of the car was not excessive the defendants were entitled to a verdict.
The cases of Keegan v. Third Ave. R. R. Co. (34 App. Div. 297; affd. in 165 N. Y. 622) and Zimmer v. Third Ave. R. R. Co. No. 1 (36 App. Div. 265) do not apply. In those cases the negligence of the defendant was predicated upon the improper operation of- the car, and in the operation of its car there can be no doubt but that the defendant is bound to exercise the greatest care for the protection of the passengers; but here there was no evidence that such care was not exercised, as the mere fact that the car gave a jolt in turning the curve was not sufficient to justify a finding that more power was used than was necessary for the purpose. The plaintiff testified that she had ridden on this line around this curve from 75 to 100 times prior to the accident, and she was asked: “ Did you observe anything peculiar in the motion of the car in going around these corners at 53d Street and Broadway and 53d Street and Ninth Avenue ? ” That was objected to by the defendant and the objection sustained, but I do not think that this was error. The question related to a peculiarity in the motion of the cars of the defendant’s road in rounding the curve on former occasions. There was no allegation in the complaint that the roadbed was out of order or improperly constructed, or that the car was not a proper car, properly equipped for the purpose for which it was used, and it seems to be entirely immaterial whether there had been anything peculiar in the motion of the cars at other times when rounding this curve. The plaintiff claims that this was relevant to show that the *405motion wás such that the conductor was required to give notice to the passengers of the approach of the curve ; but as there was no evidence to show that such notice was not given at the time of the accident, the evidence was immaterial for that purpose, even if it would have been competent to predicate negligence upon the fact that no such notice was given. This would also apply to a refusal of the court to allow the plaintiff to show that it was customary for the conductors to give such notice.
The fact that the person who was thrown upon the plaintiff had been talking to the conductor while the car was going through Fifty-third street would also seem to be immaterial, as this conversation with the conductor had no relation to the accident. The conversation between the plaintiff and the conductor after the accident was plainly immaterial, was not part of the res gestee, and had no relation to the cause of the accident. The request to charge that it was the duty of the defendant to make necessary rules and regulations for the protection of its passengers from injury and a failure to make such reasonable rules therefor was negligence on the part of the carrier, was properly refused, as there was no evidence in the case that the defendant had not made such rules and regulations, or that this accident had any relation to a violation of the rules of the company. The other requests to charge that were refused are covered by what has been already said as to the duty resting upon the defendant, and do not require further discussion. All of these requests to charge are to be judged by the facts in this particular case, and while they undoubtedly contain a correct statement of the law affecting an accident caused by a failure of the defendant to provide a suitable roadbed and cars or to properly operate them, they were not applicable to a case where the injury to the passenger was caused by the act of another passenger, over whom the defendant’s agents had no control.
It follows that the judgment and order appealed from should be affirmed, with costs.
McLaughlin, J., concurred; O’Brien and Hatch, JJ., dissented.