The action is to recover for the negligent killing of plaintiff’s intestate.
The 'street over which defendant’s horse-car track ran had been or was in process of repair, and for some days,, .at least, the south-. erly rail of the east-hound track was depressed from four to six inches below its opposite rail. This depression extended about three feet along the- track making, as claimed, a sharp pitch hole over which défendant’s car at the time, of the accident was driven rapidly and by the swaying and bounding of which plaintiff’s intestate was tlirown from the front platform, upon which he was *261standing, under the wheels of the car receiving injuries from which he died.
If the hole existed to such extent and for such time as plaintiff claimed, and defendant’s driver drove at a rapid pace regardless of it, knowing that men were standing on the front platform with him, a question was made for the jury to determine, whether or not the defendant used due care in the management of its car, in view of all the circumstances.
We think the judgment •must be reversed, however, because the plaintiff failed to show that the deceased himself exercised any care or vigilance to guard against falling from the car.
It was late at night. The car was not full. The deceased and his companion, Eustace, were smoking and remained on the front platform. The conductor collected their fare while they stood there. While it was not negligence jyer se for the deceased to stand upon the platform (Nolan v. Brooklyn City & Newtown R. R. Co., 87 N. Y. 63; Bradley v. Second Ave. R. R. Co., 34 App. Div. 285), yet he was manifestly in a more dangerous position if the car should rofek or sway, than if he were seated inside the car. If an accident had occurred to him while so seated there would have been no occasion to prove that he was on his guard in any manner, because there would have been no occasion for such precaution. One standing'upon an open platform, however, owes to himself and his carrier some precaution, either by manner of standing or grasping some support, against losing his balance by any sudden motion of the car. While exposure to danger may not constitute negligence of itself and as matter of law, yet such position enjoins upon a party a degree of care commensurate with the surroundings and the situation. (Palmer v. Dearing, 93 N. Y. 7; Thomas Neg. [2d ed.], 691.)
The only testimony adduced upon this point by the plaintiff was by the companion, Eustace, who says that both 'he and deceased boarded the car at Sixth avenue, and that he himself took a position on the platform against the left side of the dashboard, holding on to it, and that the deceased stood with his back against the body of the car on the opposite side, and that the last he noticed of the deceased was when the car crossed Broadway, the accident happening about fifty feet therefrom.- When the jolt came the witness *262was thrown against the driver,.and' he did not see the deceased pitched from the car. An alarm was given and the car very shortly stopped, and deceased was found with his leg pinned under the forward wheel. The witness-does-not describe in any,manner how the-deceased was standing-with reference to bracing himself, or whether he had hold of any part of the car; and he gives no facts from Which the jury could have inferred that the deceased was taking. any precaution whatever. The plaintiff, therefore, failed to prove, as- .she was required to do, that the deceased was free from coiitributory negligence on -his part, and to show any facts from which that fact could be inferred, and for that'reason we think a new trial inusi/be ordered.
There are other serious questions raised by the appellant, but in view of our conclusion that another trial must be had, upon which they may not arise, we do not deem it necessary to consider them. ,
The judgment and order should he- reversed, and a new trial granted, with costs to /the appellant to abide the event.,
O’Brien, P. J., McLaughlin and Clarke, JJ., concurred; Ingraham, J., concurred in result.
Judgment and order reversed and new trial ordered,-' costs to appellant to abide event.