We do not think that the evidence will warrant us in holding as matter of law, that the plaintiff is chargeable with contributory negligence in taking his place inside the bulwarks, yet outside of the partition between the gangway and the main part of the boat. There is nothing to show that it was a position of such obvious or well known danger, as that an ordinarily prudent and cautious man would hesitate to remain standing there, at the moment of the starting of the boat, to take leave of friends on the wharf. The order or request from the mate for all passengers to step inside, was not heard by the plaintiff.
The more important question is, whether the defendant is chargeable with negligence causing the mishap to the plaintiff.
The plaintiff went on to the boat for the purpose of taking passage on that trip, and though he had not yet procured a ticket, he was, if he remained on board, liable for the payment of the passage-money. He was there in the character and relation of a passenger. The defendant owed him the duty of a carrier of passengers to a person in its charge as such. That duty is, to use the strictest diligence, to protect *Page 310 the life and person. By this rule the defendant is liable for any injury which might reasonably be anticipated to occur, in view of all the circumstances, and of the nature of the carriage, and the number and character of the persons upon the boat; (Flint v.Nor. and N.Y. Trans. Co., 34 Conn., 554; Putnam v. Broadwayand Seventh Avenue Railroad Co., 55 N.Y., 108, 119.) This broad statement has limits. A carrier of passengers is not bound to foresee and provide against casualties never before known and not reasonably to be expected; (Dougan v. Ch. Tr. Co.,56 N.Y., 1; see also Wyckoff v. Queens County Ferry Co., 52 N.Y., 32;Crocheron v. N.S. and S.I. Ferry Co., 56 N.Y., 656.) Hence his duty is not to be estimated by what, after an accident, then first appears to be a proper precaution against a recurrence of it; (Bowen v. N.Y. Cent. Railroad Co., 18 N.Y., 408;Dougan's case, supra.)
Keeping these rules in view, we may inquire just what is charged upon the defendant as a fault, and whether the law fixes that upon it as negligence.
It is not claimed that it had not provided all the means and appliances, which the most prudent and intelligent forethought would have devised, nor that they were insufficient and incompetent of their kind.
Indeed it seems to be conceded, that the defendant had upon the boat the means and appliances, sufficient in kind and strength and adaptation, to have prevented the accident which happened. Moreover, it appears that coincident with the accident, the mate of the boat was in the act of taking the rails and stanchions to put them in their proper places for the voyage, and that he had already put the gate properly and securely in its position across the gangway. The allegation of negligence is then narrowed to this, that all of these appliances were not put in the position for which they were designed, before or immediately coincident with the starting of the boat. The gate across the gangway was put in its place in due time. It did not break under pressure, so it did not thus occasion or aid the accident. The testimony is *Page 311 uncontradicted, from unimpeached witnesses, that the gate could not, unbroken and whole, be pushed or sprung out from the staples which held it at either end. It is established that after the gate was properly in place, and before the accident, the forward end of it was lifted from the staple, and it was left hanging by the after end; so that the accident did not occur from the gate not having been put in place, or from its not being fit and sufficient for the purpose, but from the unauthorized displacing of it by some volunteer or wrongdoer, not an employe of the defendant; and from the rush upon the plaintiff of other passengers in unthinking and heedless eagerness to see the man overboard. There is no proof that if the gate had been left in place it would not have resisted or sufficiently checked that rush. There is no proof that the passengers who made it, were not as orderly and well-behaved as any body of travelers which, from day to day, took passage with the defendant. There is no proof that such an accident, or one like it in any of its features or causes, ever took place before. The ground for the charge of negligence is then reduced to this: A presumption is indulged, that if, in addition to the gate being in place, the stanchions had been in, and the rail had been on top and fastened, before or at the instant of the boat leaving the wharf, the meddler with the gate would not have been able to have displaced the rail as well as the gate, so that the plaintiff could then also have been pushed through the gangway.
If it be conceded that the occurrence of just the same thing again would be an act of negligence, it is still to be ascertained that it was one which on that, or any evening, was then reasonably to be anticipated, and which the defendant ought to have expected, as liable to take place in the natural course of things. The learned General Term answers this in the affirmative, and gives the strength of the argument to be made in support of that answer. A reason urged is, that anticipation of it is shown, because provision was made against it. This assumes, it seems to us, for there is no proof of it, that the gate and rail and stanchions had for their chief purpose to guard against just such an accident as this. We are taught by the *Page 312 Dougan case (supra), that there is another accident which may take place upon these boats, and of which this provision, especially that of the gate, would prove an ample preventive. Let us consider, too, that all steam vessels are not run for carrying passengers, and that all that are run for that purpose are not so crowded as this one was with passengers and their friends at the moment of starting. Yet all steam vessels are built with this same movable rail over the gangway, fastened in the same way, and very many, if not all, with the stanchions under it. Are we justified, then, in assuming that because the defendant built its boat as other steam vessel owners have for a long time built theirs, that the defendant anticipated that this accident might some time happen? Is it not rather the more rational inference, that the rail and stanchions were supplied to this boat by the defendant, in the ordinary manner of building such boats, and for the ordinary purpose? Doubtless to put a visible and strong obstacle to a person on board, who might, without it, carelessly walk over the side; not so necessarily as that we may assume it to be so, to enable one on board, pressed against it by a crowd behind him, to resist being thrust overboard. For the former mode of mishap, even with the safeguards of bulwarks and rails, is not unprecedented; the latter, at the time of this occurrence, so far as we are informed, was unknown. Another reason urged is, that the boats of the defendant are liable to be crowded, especially at gangways, at the time of starting. This is true, but it does not follow that so extraordinary and unprecedented a concurrence of circumstances should be expected to happen. In the first place, an attempt of three rash persons to regain the land after the boat had started; then the entirely heedless and unthinking rush and pressure of a crowd of passengers of ordinary sobriety and prudence; and then the wrongful opening of the gate by an unauthorized person. Had not these three things conjoined we may not say that the plaintiff would have been harmed. It may be further conceded, that there is likely to be in the number collected, some unthinking and careless and rash man, who will neglect to go *Page 313 ashore in time, and will make the attempt to leap to land after the boat has left the wharf, and will fall short. It may be conceded, that the gathering on one of these boats will be swayed by the impulses which would affect the like number and character of people in any other place, and that the happening of any thing tending to excite interest and curiosity, and attract attention, will cause it to mass itself suddenly at the point of interest. But even if it be allowed that the eagerness to see a man casually in the water, would cause it to press so recklessly of the safety of its members towards the edge of the boat, there is still to be established, a reasonable anticipation that it would occur in combination with the wrongful opening of the gate, whereby those in front could be shoved through and overboard. It had not been known so to occur before, and we do not think that it can be said that it was reasonably and naturally to be looked for as liable to take place then. The case is without a syllable of proof that such an accident ever happened before, or that any one of the constituents of it ever happened before. Now these were the proximate causes of the accident. The mishap could scarcely have happened without conjunctive occurrence of them, and more especially without the willful interference of the person who displaced the gate. We see no facts in proof, from which it can be said that such an occurrence was reasonably to be anticipated, or that it was or should have been contemplated by the defendant, as in the nature of things likely to occur. It seems to us, that the doctrine of the Dougan case (supra), and that of Crocheron v. Ferry Company (56 N.Y., 656), are applicable and controlling here, and that the defendant is not chargeable with negligence for not putting in place the rail and stanchions before the starting of the boat. Experience had not shown that danger was to be apprehended from this source, and that it was necessary to be guarded against; (Dougan Case,supra.) With these views on the main question, it is not necessary that we consider the minor questions of the reception and rejection of evidence under objection. *Page 314
The motions for nonsuit, on testimony in which there was no material conflict, and exception to a denial, present a question of law. Our decision of that in favor of the defendant leads to a new trial.
The judgment should be reversed and a new trial granted.
All concur.
Judgment reversed.