#### Maurice Coleman, Resp’t, *v.*The Second Avenue Railroad Co., App’lt.1

*(Court of Appeals, Second Division,*

*Filed June 28, 1889.)*

1. Negligence—Street railroads—Question op pact por jury.

The plaintiff was a passenger in one of defendant’s open cars. He left the seat he was sitting on and stepped out onto the side step of the car, and was proceeding to go forward to take another seat in the car, when his head came in contact with one of the supporting columns of the elevated railroad, under which defendant’s road was operated, and in that manner was injured. *Hi Id,*that whether the plaintiff was justified in leaving this seat and going outside the car to seek another seat in it, was a question of fact for the jury.

2. Same—Risks assumed by passenqers.

*Held,*that if passengers, without reasonable cause, leave a car in which they are riding and place themselves on the outside of it when in motion, they assume the hazards of so doing.

S. Same—Instructions to jury.

*Held,*that the defendant had a right to have the jury instructed that a state of facts within those, which there was evidence tending to prove, and which, if found by them, would, as matter of law, constitute a defense on the ground of plaintiff’s negligence. Vann and Brown, JJ., dissenting.

Appeal from judgment of the general term of the supreme court in the second judicial department, affirming judgment entered on verdict against the defendant.

*Austen G. Fox,*for app’lt; *A. J. Skinner,*for resp’t.

1

 Reversing 1 N. Y. State Rep., 580.

Bradley, J.

While riding as a. passenger in an open car on the defendant’s street railroad, the plaintiff received a personal injury, which he charges was occasioned wholly *567iby the fault or negligence of the defendant. The plaintiff •entered the car ad One Hundred and Twenty-sixth or One Hundred and Twenty-seventh street in the city of New York, and sat on the rear seat of the car until it approached One Hundred and Fifth street, when he left his seat and stepped out onto the side step of the car, and was proceeding to go forward and take another seat in the car, when his head came in contact with one of the posts or supporting columns of the elevated railroad, under which the defendant’s road was operated, and in that manner received the injury.

The distance between the car and the post, as represented by the evidence, was from one foot eight inches to twó feet. The questions whether the defendant was chargeable with negligence in the matter, and whether any negligence on the part of the plaintiff contributed to produce the injury, were submitted to the jury. Thereupon the defendant’s counsel requested the court to charge the jury that if they believed “that the plaintiff left his seat unnecessarily and. voluntarily, and while the car was in motion, and without requesting the driver or conductor to stop the same, and when upon the step of the car he swung himself outside the line of the step of the car, and while so doing came in contact with the column of the elevated railway, the defendant” was entitled to a verdict. The court declined other than as charged, and exception was taken to such refusal. The evidence was such, as a whole, to permit the jury to find in the affirmative, the proposition presented.

While the evidence of the plaintiff tended to prove that he was crowded from his seat, or in such manner as to render it uncomfortable for him to remain there, and that he was proceeding to obtain another when he was injured, there was evidence given on the part of the defendant to the effect that the two rear facing seats were not full at the time in question, but that when the plaintiff left his seat there was room in them for two or three more persons. Whether the plaintiff was justified in leaving his seat and going outside the car to seek another seat in it, was a question of fact for the jury. The seats in railway cars are provided for the passengers to occupy. If without reasonable cause they leave the car or place themselves on the outside of it when in motion, they assume the hazards of so doing. *Clark*v. *Eighth Avenue R. R. Co.,*36 N. Y., 135; *Ginna*v. *Second Avenue R. R. Co.,*67 id., 596; *Dixon*v. *Brooklyn City and N. R. R. Co.,*100 id., 171; *Todd*v. *Old Colony R. R. Co.,*3 Allen, 18; S. C., 7 id., 207; *Hickey*v. *Boston and L. R. R. Co.,*14 id., 429; *Torrey*v. *B. and A. R. R. Co.,*147 Mass., 412; *Pittsburg, etc., R. R. Co.*v. *McClurg,*56 Penn. St., 294; *Indianapolis, etc., R. R.*Co. *568v. *Rutherford,*29 Ind., 82; *Pittsburgh, etc., R. R. Co.*v. *Andrews,*39 Md., 329; *Dun*v. *Seaboard, etc., R. R. Co.,*78 Va., 645.

The cause which may justify a passenger, without the-imputation of fault on his part as against the carrier, in leaving his seat and going outside the car, and occupying temporarily, or otherwise, a position there, while it is in motion, must be dependent on the occasion and circumstances which induce or impel him to do so. We are now dealing with the. situation presented by the evidence in the-present case. The plaintiff asserts that the seat which he occupied became so crowded as to render it uncomfortable for him to remain in it. This, so far as appears, seems te have been the only reason which induced him to seek another seat, and to proceed, in the manner he did, to reach it. Upon his evidence, the conclusion was permitted that he had reasonable cause for leaving his seat tu. obtain another, and that it was necessary for his comfort to do so; and it is upon that assumption that he may be relieved from the charge of contributory negligence. But if he unnecessarily and voluntarily left his seat and proceeded onto the step, and there came in contact with the column of the elevated road, in the manner stated in the proposition, which the court was requested and declined to submit to the jury, it is difficult, in view of the evidence, to see that the plaintiff was entitled to recover.

Upon that assumption of fact there was no impelling cause which justified his act of going outside the car and taking the hazard from which resulted the injury. In that case the consequence of the situation in which he placed himself, came from his own fault, and he was chargeable with contributory negligence. The refusal of the court to charge, as so requested, therefore, was error, unless the charge, as made, covered such proposition so far as the court could properly be required to submit it to the jury. The question of negligence of the plaintiff was submitted to the jury in general terms. Although the general proposition charged in that respect may be deemed to have embraced within it all the causes to which the plaintiff’s negligence may have been attributable, the defendant had the right to have the jury instructed that a state of facts within those which there was evidence tending to prove, and which, if found by them, would, as matter of law, constitute a defense on the ground of negligence. This was the apparent purpose of the request. And it was not in substance or effect expressed in the instructions given by the charge of the court to the jury. As the case is presented by the record before us, the consideration of no other question is deemed necessary for the purpose of a new trial.

*569For the error in refusing to charge as so requested, the judgment should be reversed and a new trial granted, costs to abide the event.

All concur, except Vann and Brown, JJ., dissenting.

Brown, J.

I dissent on the ground that the substance of the request discussed in the opinion of the court is covered by the general charge, and by the response of the trial judge to the other requests.

Vann, J., concurs with Brown, J.