A petition for re-hearing having been presented in this case we have again considered it, but see no reason to change the conclusion hitherto announced. Counsel cite in their petition Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. 492, and Willis v. Long Island R. R. Co., 32 Barb. 399, and same case, 34 N. Y. 681. These cases do not sustain the claim to recover made upon this record. In both of these cases the defendant was guilty of great negligence, independently of all question as to insufficient room within the cars, and the substance of the decisions is, that a railway company may be guilty of such negligence as to be liable for an injury to a passenger, notwithstanding he is standing upon the platform, and would have been safe if within the car. To this proposition we should probably not disagree. But in this case the only negligence which can be attributed to the company is the failure to supply sufficient sitting accommodation to a funeral party going a distance of twelve miles, and consisting of seventy or eighty persons, the evidence leaving it extremely doubtful whether any notice at all had been given to the company that such a party would leave upon the train, and there being absolutely no evidence that the company had been notified what would be the size of the party or what accommodations they would require. A railway company which fails to furnish comfortable sitting accommodation for. its ordinary number of passengers, or even for an extraordinary number upon due notice, is certainly negligent, and should be held to strict accountability, but it would be unreasonable to apply the same strictness when a train is unexpectedly crowded by a funeral party going only a few miles.
In this case, however, we deny the application for a rehearing because, admitting all the evidence proves or tends to prove, admitting that the company had been notified that there would be a funeral party upon the train, and admitting even that all the seats were occupied, it is still proven hy all the witnesses that there was abundant standing room in the cars, and this is conceded by appellant’s counsel. It is further conceded in the petition for rehearing that the deceased was standing on the steps of the platform holding on to the railing. It is also proved that deceased had been in the employment of the railway company, and was of course familiar with the perils of railway travel. When a passenger voluntarily places himself in this most exposed position, with abundant standing room within the cars, and falls to the ground, not in consequence of a collision, or a broken rail, or other fault of the company, but in the endeavor to secure money that the wind had blown away, we can see no ground for holding that his own negligence is not far greater than any that can be attributed to the company. In the case above cited, of Willis v. L. I. R. R. Co., in 32 Barb., upon which counsel rely in the petition for a rehearing, the court distinctly places its decision upon the ground that the injury to the plaintiff arose from a cause which the plaintiff was not bound to guard against, namely, the throwing of the train from the track by obstructions on the road which the company should have removed, and say: “ If a man places himself in such a position that in the ordinary movement and conduct of the train he is exposed to danger, he may justly be said to be negligent of his security, and must take the consequences if he is injured.” The court further say: “If the plaintiff in this case had been thrown off the platform by a jerk or movement of the train,' he would have encountered a danger incident to his position, and although the jerk might have been occasioned by high and unusual speed, or other mismanagement, still, at the most, the fault would have been mutual.” It is apparent from these quotations that upon the principles laid down by that court, no recovery could be had in the present case.
We are by no means disposed to relax in the least degree, the just obligations or liabilities of railway companies, but in this case the death of the deceased was so clearly attributable directly to his own rashness that we cannot hold the company liable in damages.
Rehearing denied.
Note.—Subsequent to the filing of the original opinion in this case, Mr. Justice Lawrence, being the oldest justice in commission, became Chief Justice,