#### Carlos C. Buck, Respondent, *against*The Manhattan Railway Company, Appellant.

(Decided June 2d, 1890.)

In an action against an elevated railroad company for injuries to a passenger who, in attempting to leave a car platform at a station, was forced between that and the station platform by persons in their efforts to board the train, plaintiff requested a charge to the jury that, “ the defendant being a common carrier, it was its duty to use the utmost care which a very cautious person would exercise to prevent injury to passengers while on its vehicles.” *Held,*that this was properly refused; and that another request for an instruction that “the defendant was bound to exercise reasonable care, not only on the part of its servants, but also like care in preventing injury from the careless or wrongful act of any other person whom it permits to come on its premises, if such careless or wrongful act on the part of others could have been foreseen,” was properly granted.

Defendant requested an instruction that the mere fact that plaintiff sustained an injury while a passenger on defendant’s road, did not entitle him to a verdict, and that he must show that the accident was caused by a lack of due care on the part of defendant. *Held,*that this was a proper charge, as merely stating the rule as to the burden of proof of negligence.

Plaintiff also requested instructions that, if defendant opened the gate to the platform of the car without any warning to let plaintiff alight first, it was an invitation to passengers on the station platform to enter the car, and to plaintiff to leave; and that, if the platform of the car was so narrow that two persons could not pass abreast, and the passengers entering the car collided with plaintiff while leaving it in consequence of an invitation given by throwing open the gate, defendant was liable to plaintiff for any damage resulting from the collision, provided the collision was not due to the fault of plaintiff. *Held,*that these instructions were objectionable, as involving the conclusion of fact that the opening of the gate was an invitation to passengers to enter the car, rather than to plaintiff to alight; and also as making defendant liable, without fault on its part, for the negligence of one passenger towards another.

As far as the testimony showed, only one passenger besides plaintiff alighted from the train, and only three attempted to board it, at the station where the accident occurred ; and there was no evidence of any unruly or boisterous conduct of those getting on board of it. *Held,*that evidence was not admissible that, on other occasions, on different trains, at other stations, the guards had warned persons on the station platforms. not to enter the trains until the outgoing passengers had alighted, it not appearing that the situation was identical or nearly similar with the circumstances of the case on trial.

*551Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.

The facts are stated in the opinion and in the reports of the decisions on former appeals, *ante,*pp. 48, 276.

*John W. Weed*and *Richard M. Henry,*for appellant.

*Howard Townsend*and *Alexander S. Lyman,*for respondent.

Bookstaver, J.

The action was brought to recover damages for personal injuries occasioned by the alleged negligence of defendant. No testimony was offered on its behalf. The plaintiff offered evidence tending to show that, on the evening of January 29th, 1888, he was a passenger on defendant’s Third Avenue line, going south. As the train approached the 67th Street station he arose to leave, and went to the rear end of the second car and stayed there until the train stopped, when the guard opened the gate and the plaintiff started to leave the car platform. As he approached the edge of that platform and his right foot was raised in the act of stepping from it to the station, two or three persons on the station platform rushed on board the car and violently pushed the plaintiff, thus throwing him around so that he lost his balance, and his foot went between the car and the station platform, inflicting a severe injury to the smaller bone of his right leg near the ankle. At the time of this occurrence the guard stood with his left hand on the bell-rope and his right managing the gates of the car. There was no extra guard on the station platform, and in fact, no one there on behalf of the company except the “ ticket chopper.”

The chief question arising upon this appeal is the degree of care required of a common carrier in order to prevent injury to its passengers while in transit, or getting on or off its cars on other vehicles, from the careless or wrongful acts of other passengers. On this question the plaintiff submitted two requests to charge: (1) “ The defendant being a common *552carrier, it was its duty to use the utmost care which a very cautious person would exercise to prevent injury to its passengers while on its vehicles.” (2) “ The defendant was bound to exercise reasonable care, not only on the part of its servants, ¡ but also like care in preventing injury from the careless or wrongful act of any other person whom it permits to come on its premises, if such careless or wrongful act on- the part of others could have been foreseen.”

If these two requests are not actually antagonistic, the second is a modification or at least an explanation of the first, and limits the *utmost*care to *reasonable*care, as applied to the careless or wrongful acts of other passengers. The first request is an extreme statement of the rule of law applied in cases of injuries to passengers, while they are being carried over a railroad, where the injury occurs from a defect in the roadbed or machinery, or in the construction of the cars, or where it results from a defect in any of the appliances, such as would be likely to occasion gfeat danger and loss of life to those traveling on the road. But plaintiff’s injuries did not arise from any of these causes. The real ground of negligence charged is the failure to prevent other passengers from being reckless and careless in boarding the train. The collision of one person with another, through carelessness, is not peculiar to railway travel; it may happen upon the public streets or highways, in drawing-rooms or public halls, as well as upon railways; and in this latter class of cases we think a different rule of law applies, and the second request is a fair and just statement of that rule, under *Palmer*v. *Pennsylvania Co.*(111 N. Y. 488) ; *Kelly*v. *Manhattan R. Co.*(112 N. Y. 443) ; *Lafflin*v. *Buffalo &. S. W. R. Co.*(106 N. Y. 139; *Morris*v. *New York Cent. H. R. R. Co.*(106 N. Y. 678).

When this case was before this court on a former appeal, the learned judge who wrote the opinion on that appeal intimated that the rule requiring a common carrier of passengers to use the utmost care and skill which human prudence and foresight suggested- was applicable to a case like this while the passenger was upon the car or its platform, but the appeal turned upon another point, and his remarks on this subject *553were collateral to the discussion of that other question so far as they approved the first request (ante, p 276.) The court, therefore, was justified in refusing to charge the first request and in charging the second.

The defendant’s fourth, fifth, and sixth requests, which the court charged, relate to the measure of responsibility of a common carrier of passengers when one passenger is injured by the fault of another, and we think, are fully sustained by *Putnam*v. *Broadway 7th Ave. R. Co.*(55 N. Y. 108); *Pennsylvania F. W. C. R. C.*v. *Hinds*(53 Pa. St. 512) ; *Morris*v. *New York Cent. & H. R. R. Co.*(106 N. Y. 678) ; and the decisions above cited.

The defendant also requested the court to charge, (1) “ The mere fact that the plaintiff sustained an injury, while a passenger on defendant’s road, does not entitle him to a verdict. He must show that the accident was caused by a lack of due care on the part of the defendant.” To this plaintiff excepted. The charge was proper. It merely stated the familiar rule of law that the burden of showing negligence is upon the plaintiff. *Holbrook*v. *Utica & S. R. Co.*(12 N. Y. 242).

Defendant’s second and third requests relate to the degree of care required of a common carrier, and fall within the rule first considered.

Plaintiff also requested the court to charge, (4) “ If you find that the defendant, by its agent, the guard, threw open the gate to the platform of the car without giving any word of warning to let the plaintiff alight first, then the opening of the gate was an invitation to passengers on the platform to enter the car and the plaintiff to leave.” (5) “ If you find that the platform of the car was so narrow that two persons could not pass abreast, and that the passengers entering the car collided with the plaintiff while leaving it in consequence of an invitation given by throwing open the gate, then the defendant is liable to the plaintiff for any damage resulting from the collision thus brought about, provided the collision was not due to the fault of the plaintiff.” The court refused to charge the first of these requests, but left it to the jury to *554say whether or not the opening of the gate was an invitation to the plaintiff to leave the car. Both requests involve the conclusion of fact that the opening of the gate was an invitation to passengers to embark rather than one to plaintiff to alight. The opening of the gate is clearly as necessary to let passengers off as to let others on the train. It is just as easy to reach one conclusion as the. other. Where opposite inferences may with equal propriety be drawn from the same state of facts, it is the exclusive province of the jury to draw them *(Hart*v. *Hudson River Bridge*Co., 80 N. Y. 622). Besides, the request, if charged, would have made the defendant' liable, as a matter of law, without fault on the part of its servants, for the negligence of one passenger toward another.

The court did not err in excluding, evidence of what the plaintiff had heard the guard say on other occasions, nor that he had seen extra guards at other stations. The inquiry in this ease was whether the defendant was guilty of negligence towards the plaintiff in regard to this particular casualty whereby he received his injuries, and as a part of that inquiry the conduct of the guard, his faults of omission or commission, were proper subjects of investigation, and this matter was fully gone into. The fact that on other occasions, on different trains, at other stations, the plaintiff had heard other guards say, “ Passengers off first, please,” or similar remarks, or that they had warned persons on the station platform, eager to enter the train, not to do so until the out-going passengers had alighted, was immaterial, at least unless the situation in all essential details was identical or nearly similar with the circumstances involved in the case before the jury. This was not shown, nor was there any offer made to show it. We think it well settled in this state, that when evidence of conduct, usage, or manner of operation, is offered for the purpose of throwing light on a particular transaction, the circumstances must be shown to be identical or so nearly similar as to require the same course of conduct in both cases *(Fillo*v. Jones, 2 Abb. Ct. App. Dec. 121 ; *Hill*v. Syracuse, *B. & N. Y. R.*Co., 63 N. Y. 101).

The number of passengers alighting from or entering trains *555not only differs very greatly at different stations, but also at the same station at different hours, and is an important element for the jury to consider in determining whether a guard should be placed at a particular station at a particular time or not. So, too, the disposition of the passengers to get on or off the train, as made apparent by conduct to an ordinary observer, is an element to be considered by the jury in each particular ease. As far as shown by the testimony, only two passengers, including the plaintiff, alighted at the station where the accident occurred, and only three attempted to get aboard. Besides these, there was only the “ ticket chopper ” on the platform, so that it was comparatively empty. There is absolutely no evidence showing that the three persons, who attempted to board the car, evinced any unruly or boisterous conduct before colliding with the plaintiff, and the evidence offered was properly excluded.

The judgment should therefore be affirmed, with costs.

Larremore, Ch. J., concurred.

Judgment affirmed, with costs.