On the evening of June 13,1892, the plaintiff, with some friends, boarded an open summer car of the defendant having steps running along upon the outside. The plaintiff stood for a time on the rear platform, smoking. As the car neared Forty-second street some people got out, and the plaintiff undertook to proceed along the side step to occupy one of the seats vacated. The change was voluntary on his part, and while he was attempting to consummate it his head was brought in contact with an elevated railroad column and badly injured.
At the trial the complaint was dismissed on motion of the defendant’s attorney, and we think the dismissal was right. The defendant was guilty of no act of negligence and did nothing by means 'of which the plaintiff was injured. The defendant was not responsible for the presence of the elevated railroad columns, nor for any injuries caused by them.
The case resembles that of Murphy v. Ninth Avenue Railroad Co., 6 Misc. Rep. 298, in which it was held that the defendant, under similar circumstances, was not liable. The distinction between the rule decided in the cases cited by the appellant and that which governs this case is clearly laid down in the Murphy case ; and for the reasons stated the judgment appealed from should be affirmed, with costs.
Van Wyck, J., concurs.