I dissent from the conclusion reached by the majority of the court in this case, thinking as I do that error was committed upon the trial in refusing to permit the plaintiff to show, as alleged in the complaint, that the place where the accident occurred “ was well known to be dang'erous and it was customary for the conductor on approaching said spot to give warning to all passengers in order that they might secure themselves against the jolt, jar or strain which experience had taught was likely to occur in turning said corner.” The complaint had further alleged “ that no warning of the approach to this dangerous place was given, nor was any effort made to prevent the man from entering the car at that moment,” and “ that the injury to plaintiff occurred * * * solely by reason of the negligence * * * of the said * * * Company, its servants and employees in the management and running of its said car in not having proper rules for the management and running of its cars or in neglecting to apply such rules on the occasion referred to in permitting said car to go around the said, curve at Fifty-third Street and Ninth Avenue at a great and unsafe rate of speed and in failing to call the attention of the passengers to the approach to this dangerous turn and in permitting the man herein mentioned * * * to enter the said car at the moment of turning this dangerous curve.”
Although the summarized evidence presented in the record upon this appeal on which reliance is solely placed upon certain erroneous rulings, does not show either that the car was going at an excessive rate of speed or that no warning was given just prior to the accident, the court, in charging the jury, said : “ You have the evidence of the plaintiff herself, who states that the speed of this car while going or being driven around the turn was from ten to twenty miles an hour and that the speed was much accelerated just before the curve was reached. She states that the speed of the car while going around the curve was twice as great as while it was coming down the street. Now there is no contradiction of her testimony; no evidence has been offered by the defendant to dispute her; no rea*407son has been given why the defendants* have not put the conductor upon the stand.” And, subsequently, when the plaintiff requested that the jury be charged “ that if the carrier knew or had reasonable grounds to believe that the car in turning * * * would be jolted * * * so that injury would possibly result to passengers seated or standing, it was its duty to warn its passengers that they might secure themselves from injury,” the court replied: “ I refuse to charge further than I have already instructed the jury ; that there is no duty resting upon the defendant to warn people, and yet the failure to voltmteer such a warning may be taken into consideration in determining whether proper care has been observed in the railroad company in the operation of its car with respect to speed.”
Apparently, therefore, evidence was given on the trial both that the car rounded the curve at an excessive rate of speed and that there was no warning. The question, however, which is presented upon this appeal is whether the court erred in the theory upon which the case was tried in refusing to receive testimony offered to show that the place where the accident occurred was an especially dangerous one calling for more than ordinary care on the part of the defendant. The case cited in the prevailing opinion of Stierle v. Union Railway Co. (156 N. Y. 70) recognizes that “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.” Evidently with this rule in mind, the attorney for the plaintiff after she had testified that several times a week she had ridden around this corner and at least 75 or 100 times prior to the accident, asked her, “ 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 ? ” and objection was made ' except it be confined to the day and time when the accident happened.” Plaintiff’s counsel then stated that he wished to show the manner in which * cars went around these corners and the custom of giving warning *408• upon approaching the curves, but the objection was sustained, the court saying: “ The inquiry should relate to the particular occurrence whether at the time in question this defendant conducted itself with proper care in the operation of this car around this angle ; ” and when asked if it might be shown that ordinarily the warning to “hold fast” was given, answered : “No, because there is nothing in the law to require them to do that,” and exception was taken. As already pointed out, the court thereafter in charging the jury refused the plaintiff’s request that if danger was to be apprehended in rounding the curve warning should be given ; and there were a number of requests to charge that if a high degree of care would have prevented the accident, such care should have been exercised by the defendant, which were denied, the court saying 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.” Such instruction was entirely consistent with the case as it stood with all evidence of the dangerous character of that part of the roadbed where the accident occurred excluded; but had such evidence been admitted, as, in view of the allegations of the complaint, I think it should have been, then the plaintiff would have been entitled to have the jury charged that if they found that danger was to be expected in rounding this curve, due to the jolting of the car, a degree of care was called for on the part of the defendant in avoiding injury to its passengers therefrom.
For the error, therefore, in excluding the evidence offered to show the dangerous character of the curve or of the movement of the car in rounding it, I think that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Hatch, J., concurred.
Judgment and order affirmed, with costs.
Sio.