The plaintiff got on an open car of the defendant’s Third avénue electric street railroad in Brooklyn at the corner of Tenth street and Third avenue, which is about a mile from the place on Flatbush avenue where .the accident happened. The "car was so crowded that he was unable to get inside, and he had to stay on the running board or get off. There were already six or eight riding on the running board when he got on, and several more got on and rode there afterwards before the accident happened.
On Flatbush avenue the street under the track was being excavated, and there was a temporary fence alongside the car track. A misplaced board or plank projected out from the fence to and over the running board of the car, and caught the plaintiff and most of the others on the running board on the legs and swept them off.
. The motion for a nonsuit was made solely on the ground that there was no negligence by the defendant. It was granted op that *806ground, and also on the ground that the plaintiff was guilty of negligence which caused the accident.
There can be no doubt that it was a question of fact and not of law whether the motorman was careless in not seeing the obstruction, and the plaintiff was certainly not negligent as a matter of law in not seeing it; but the opinion for affirmance is now put on the new ground that there was no evidence that the plaintiff was accepted as. a passenger, this being put on the ground that it does not appear whether the car stopped to let the plaintiff on, or whether he paid his fare, or whether the conductor saw him on the running board. Ho such question was made on the trial by the defendant, and we therefore have no right to "consider it.. And how could the defendant raise such a question? The plaintiff had been riding on the running board for a mile with six or eight others who were already there when he got on, and several others who got on afterwards, because the car was so full that they could not get inside. Surely this was evidence enough that the conductor saw them and acquiesced in their riding there as passengers instead of getting off, which was their only alternative. That they got on one after another along the line, and the length of time they were there, was evidence that they were taken on, or that the defendant acquiesced in their getting on, or in their remaining on ; and if the defendant had 'claimed on the trial, by the motion for a nonsuit or before, that they were not passengers but only intruders, the plaintiff could have proved other facts if necessary, i. e., that the "car stopped to take him on, or that he paid his fare on the running board, or the like. But whether the plaintiff’s fare had been collected is not a controlling question, nor whether he got on the car while it was moving. Counsel for passengers injured while being carried along do not make formal proof of payment of fare, or that the car stopped to take them on, unless it be disputed that the plaintiff was a passenger.
It is true that it is stated in the opinion in Clark v. Eighth Avenue R. R. Co. (36 N. Y. 135) that the plaintiff gave evidence that the car was stopped to let him on, and that his fare was collected; but that is by no means holding that that precise evidence was or is always essential. Much bad law has been asserted by drawing such converse conclusions. Any evidence from which the fact can be found *807that the plaintiff was received or allowed to be on the car as a passenger suffices, and here the evidence was by no means scant. Neither the trial judge nor the counsel for the defendant thought of questioning it.
Nothing was done to make up this case on appeal in the form, required by the rule; on the contrary, the justice simply ordered the stenographer’s minutes filed for the case. This practice should he discontinued. The evidence should be reduced to a strict narrative and the exceptions stated in due form, as the rule requires and ;xs becomes a learned profession and as is due to this court.
The judgment should be reversed.
Hooker, J., concurred.
Judgment of the Municipal Court affirmed, with costs.