The plaintiff complains that when standing on the running board of an open electric car moved by the defendant, he was swept off *805by a plank which projected 4 inches over the running board from a fence around a work in the street. He did not prove that the car was stopped by the conductor for him to get on it or that after he had boarded the car, when there was only room for him on the running board and he stood on the running board, he was seen by the •conductor and suffered to remain there, or that his fare was demanded or accepted from him while in that position. It is obvious that if he had not been on the running board he would have suffered no injury. Before he could hold the defendant as a common carrier he was bound to show that he was invited to ride as a passenger on the running board of the car. Non constat but that the defendant would have refused to transport him while in that place and so to extend to- him the assurance that it was “ a suitable and safe place ” for him as a passenger. I think, therefore, that the plaintiff failed to make out a case. (Clark, v. Eighth Avenue R. R. Co., 36 N. Y. 135.) If the plaintiff had established his status as a passenger on the running board, I am not prepared to say that he did not upon his part make out a case for’the jury.
The judgment is affirmed, with costs.
Hirschberg, P. J., and Woodward, J., concurred; Gaynor, J., read for reversal, with whom Hooker, J., concurred.