Roe v. Crimmins

DALY, C. J.

The principle of law firmly established in this state, and recently stated by this court, that “one who knows of a danger from the negligence of another, and understands and appreciates the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure'’ (Robinson v. Railway Co., 5 Misc. Rep. 209, 25 N. Y. Supp. 91), seems to be particularly applicable to the ease of this plaintiff. On the night of November 8, 1892, he went to Park Row, to look at the election returns displayed at the newspaper offices, and took up a position in the middle of the street, within two feet of an open, unguarded trench, along with a constantly increasing crowd of persons, ultimately numbering many thousands. He stood between the trench and a car track, and, whenever a car approached, the crowd surged or rushed to get out of the way. After he had stood on the spot about an hour and a half, the crowd, in one of its rushes, pushed him into the trench, and he thereby sustained the injuries for which he sued.

There is no question that the plaintiff voluntarily exposed himself to an obvious risk. He saw the trench as soon as he reached it. It was dug for the purpose of laying the cable of the Third Avenue Street Railroad, and was eight feet wide, six feet deep, and running for some distance up and down the street, and was, according to his testimony, unprotected «and unguarded at the point where he stood, although 20 feet away there was a fence to it. He chose the position he occupied in order to see the bulletins of both The World and The Sun newspapers. When he first arrived at the spot, “there was not much of a crowd”; and “the crowd commenced to come, so that there might have been fifteen or twenty thousand persons. The whole of Park Row was full of people cheering and crowding.” The plaintiff remained with this excited crowd about him, which was surging and rushing to get out of the way every time a car passed, and he knew that, if the crowd pushed Ins way, he must be precipitated into the trench beside which he stood, with no power, as lie admits, to protect himself except to catch hold of some one, which he tried to do, but missed, at the time he sustained his- injury.

We look in vain for any evidence of care on plaintiff’s part to guard against the danger to which he knew1 he was exposed. “It is a fundamental principle in the law of this state that in an action for a personal injury, based upon the negligence of the defendant, the absence of negligence on the part of the plaintiff contributing to the injury must be affirmatively shown by the plaintiff, either by direct proof or by circumstances.” Weston v. City of Troy, 139 N. Y. 281, 34 N. E. 780. In the case last cited, the court of last resort felt bound to set aside a recovery against the city of Troy for damages sustained by the plaintiff in slipping upon .the ice in the public street. The court held that the negligence of the city was made out, but that the judgment could not be affirmed without making a precedent for overturning the rule above quoted; that, if the plaintiff discovered the ridge of ice, she might, by using due care, have kept on her way, but could not heedlessly disregard the precaution which the obvious situation suggested, and proceed as though the sidewalk was free and unobstructed. While there might have been little or no danger when plaintiff took up his position near the trench, owing to the smallness of the crowd which had then gathered, the peril increased as the crowd increased, and its irresistible motion became inevitable; and yet he remained there an hour, next to the open excavation, and his continuance in the place of danger was an absence of all care, which must defeat his recovery, for the risk was voluntarily assumed. No precaution was taken for self-protection, and there was a complete failure to establish an essential of his action, -viz. the absence of contributory negligence.

The judgment should be reversed, and a new trial ordered, with costs to appellant of the appeal and the former trial, to abide the event of the action.

PRYOS, J., concurs.