#### Ernst Mettlestadt, by his guardian, plaintiff and appellant, *vs.*The Ninth Avenue Railroad Company, defendants and respondents.

1. Negligence is always relative, and depends upon concurrent circumstances, unless the case be very plain or extreme, when the court may judicially noticé it. In all other cases it is a question of fact for the jury. *Fer*Robertson, Ch. J.

2. Injuries to a boy fourteen years of age, by a city railroad car, upon which, having paid his fare, he was a passenger, received in consequence of having fallen from it, while descending from the top of it, when moving at a moderate rate of speed, and attempting to avoid a second blow aimed by the driver, of such car with his whip, at him, while so descending, after he had struck him once with it, and reaching up his hand to recover his cap, which such driver had snatched from his head also, while he was so descending, are not so attributable to any concurring negligence on the part of such passenger as to take away the decision of that question from the jury, in an action for damages for such injuries.

3. Although it is the duty of the driver of a street car to stop it, when requested by a passenger, to enable him to get off, yet if he fails to do so, this will not authorize a passenger to negligently expose himself to irijury by jumping from, the car when it is in rapid motion, so as to be dangerous to life or limb.

4. It is a question for the jury to decide whether a passenger is guilty of a want of ordinary care in descending from the top of a city car to the street, while such car is in motion, though the car be moving at a slow rate of speed.

(Before Robertson, Ch. J., and Monell and Garvin, JJ.)

Heard May 16,1866;

decided February 11, 1867.

This was an action for damages for injuries *to the*plaintiff, caused by the acts of the defendants’ employees. The plaintiff, a boy about fourteen years old, and his companion, a boy about the same age, on the 7th of September, 1865, got upon one of the *378defendants’ one-horse cars, at Lispenard street, in the city of New York, for the purpose of being taken to Forty-third street, and paid their fares. Just before they arrived at Forty-third street, the plaintiff requested the conductor and driver to stop the car, and allow him to get off at Forty-third street. The conductor did not stop the car at Forty-third street, as requested. The plaintiff’s companion got off at Forty-third street, safely, while the car was in motion. The plaintiff having been carried beyond Forty-third street, attempted-, when about the middle of the block between Forty-third and Forty-fourth streets, to get off the car, the driver still persisting in his refusal to stop and let him get off. As the plaintiff started to get off, the conductor took off the plaintiff’s cap ; and as he reached up one hand to get his cap, the driver'struck him with his whip. The plaintiff, in attempting to avoid the blow, fell, and the wheel of the car passed over his foot, and injured it severely.

On the trial, before Justice Jones and a jury, after the above facts were proved, the court, on the defendants’ motion, dismissed the complaint, giving the following opinion :

Jones, J. I think the plaintiff must be nonsuited. The facts are all conceded, and the question is a question of law. I think the getting off the car while in motion was negligence on the part of the plaintiff. It is true, it is difficult to get these cars to stop, either to get off or on, and perhaps it would be well to sustain actions of this sort, for the purpose of preventing the employment of drivers and conductors by railroad companies, that will not accommodate the public by stopping. I do not feel inclined to go against what I have understood always to be the law, in cases of this kind, for the purpose of establishing a doctrine with a view of compelling stoppages. If that is to be accomplished in any way, it must be accomplished in some other way, either by application to the legislature or to the common council, or by some other means that may be devised. The legislature may have power to pass an act that in case the drivers do not stop, the corporations shall *379be liable for all damages resulting from it. I do not see why, upon principle, the defendants should not be equally as liable for damages incurred by attempting to get on a car in motion, when the driver refuses to stop, as by getting off a car in motion, when the driver refuses to stop. In either case, it may be equally as important for him to get on the car as to get off the car.

I, therefore, think this motion must be granted, and I will. direct the exceptions to be heard in the first instance at the general term.

*Ira D. Warren,*for the plaintiff.

*John W. Ashmead,*for the defendants.

G-arvin, J.

The questions presented in this case, upon the facts, are of such a character as should have been submitted to the jury. It is not entirely clear that the plaintiff would have left the car at the time he did, had it not been for the conduct of the driver. The motion of the car doubtless produced the injury, or, in other words, if the car had been stationary, the wheel would not have passed over his foot. If the driver had stopped, and let the plaintiff off, no such injury would have occurred. It was a clear case of negligence on the part of the defendants, but this is not enough to entitle the plaintiff to recover. The plaintiff must come into court without fault on his part. It was the duty of the driver to stop the car when requested, by passengers, and let them off; but, if he does not do so, this would not authorize a passenger to negligently expose himself to injury by jumping from the car when in rapid motion, such as to he dangerous to life or limb, whether the plaintiff would have got off the car had there been no interfence with him by the driver, is not, upon the evidence, so free from doubt as to authorize the dismissal of the complaint for negligence on the part of the plaintiff. If the plaintiff left the car voluntarily, without interference o.n the part of the driver, that might constitute such negligence as to defeat the action, provided the car was moving at a high *380rate of speed. But, if he merely rose up, preparatory to leaving, indicating to the driver his determination to leave the car, in addition to the request he had already made, and thus induce the driver to stop, and then the driver pulled off his cap and twice struck at him with a whip, and, in dodging, the plaintiff fell from the car and received, the injury complained of, this would present a very different case, and one upon which the court would not have heen justified in dismissing the complaint. This version of the case might have been adopted by the jury, and, we think, is sustained by the evidence before us. Certain facts are undisputed : 1. The plaintiff was a passenger upon the top of the car. 2. The driver refused to stop the car when requested. 3. The plaintiff left the car while it was in motion, but whether the plaintiff left at the time he did of his own free will, or whether his action was precipitated by the conduct of the driver, is not certain. Although there was evidence, tending to prove it, of such a character, that, undisputed as it was in the absence of the testimony of the driver, that would have justified the jury in so finding. The question should have been submitted to the jury. The evidence also shows that the car was moving at a slow rate of speed, and, although the plaintiff was upon the top of the car, it was a question for the jury to say whether the plaintiff was guilty of a want of ordinary care and caution in 'descending from the car under such circumstances. It is quite as safe, many times, to step from a car in motion, as if it was stationary, depending upon the rate of speed at which it is moved. A car may be under such rapid headway as to make it imminently dangerous for passengers to leave it. It is not any particular rate of speed by which the conduct of passengers is to be regulated, in entering or leaving cars, that governs ; but the rule is that of exercising ordinary care and caution, under the circumstances surrounding them.

It cannot, therefore, be said that the plaintiff, as a matter of law, was guilty of negligence in.leaving the car while in motion, even if done voluntarily. Nor can it be successfully contended that being upon the top of the car, was evidence of *381negligence, for he was called up there by the driver, the car-being full on the inside. Thus far we have considered this case upon the evidence of the plaintiff, in connection with the undisputed facts of the case. We think the evidence of the plaintiff was - susceptible of a construction entirely consistent with such want of negligence on his part as to have required the submission of the case to the jury. But there is another view of the case, which is equally controlling. The witness Haas testified: *“*I saw the driver take hold of the boy by the head and by the cap ; he took his cap away ; then he let him have the cap ; then he hit him with the whip ; the car was going at a slack rate of speed ; I saw the boy trying to get off; after the driver hit the boy he tried to dodge the blow of the whip, (probably a second blow,) and by so doing he fell, and got under the car.” This evidence should have been submitted to the jury, in connection with the testimony of the plaintiff, for, whether this conduct of the driver was willful, or negligent, or otherwise, if the plaintiff was without fault, the defendants are liable for such injuries done while driving a vehicle for the conveyance of passengers, in the same manner ner as the driver would be. (1 *R. S.*649, §§ 6, 7.)

If the jury had found, upon these facts, that the act was willful or wanton on the part of the driver, the plaintiff would have been entitled to recover. We must, therefore, sustain the exceptions taken by the plaintiff, and order a new trial, with costs to abide the event.

Robertson, Oh. J.

I am not satisfied that the evidence before us clearly establishes, that the movement of the car when the plaintiff fell, so contributed to cause that fall, as at all to raise the question of his negligence in attempting to descend during such motion. He testified that he was *going,*(in other words intended,) to get off at *Forty-fourth, street,*which was some distance beyond where he fell. Another witness, (Haas,) testified that the car was going *at a slack rate of speed.*He also stated that he saw the driver take *382hold of the plaintiff *“*by his head and by the cap ; he took the cap away * * then he hit him with his whip * * After the driver hit” the plaintiff, the latter “ *tried to dodge the blow of the whip, and by so doing fell and got under the car.”*The plaintiff testified on his cross-examination, that he tried to get off at the side ; that there was no step in front to get up ; that there was a board on the side to step on, on which he put his foot when ascending, and climbed up. The same thing, as to such board or step, was stated by another witness, (Bruner.) The plaintiff, however, testified that he actually went off *the front part of the car*when he fell; that while getting off, the driver took off his cap, and caught him by the hair and struck him with his whip, while attempting to recover his cap, whereby he scared him, and he fell “ right down.” There was no direct evidence that the plaintiff was in the act of descending either by the front or side when he fell. But it is established that the car was going slowly; that he intended to wait until it reached Forty-fourth street before attempting to descend; that the conduct of the driyer in striking and frightening him caused him to endeavor to avoid a second blow, and by so doing, (as the witness Haas testified,) he fell (according to his own statement) *over the front part*of the car *;*when in fact he intended to descend by the side. Such evidence appears to me rather to establish that it was the conduct of the driver than the motion of the car which caused the fall. At all events, if material, the question was in a proper position to be submitted to the jury.

But it is insisted that as a principle of law, the voluntary descent of any passenger from a moving railway car, or perhaps any vehicle, whatever its rate of speed may be, is *in law*such an act of absolute want of due care, as to shield the owner of the vehicle from any liability for injury received in such descent caused by the negligence of their servants. I do not understand, whether such doctrine is proposed to be limited or not by the qualification, that it must appear that such motion contributed to produce the result; but I assume that it must be, since it would be a strange doctrine, that the mere motion *383of the vehicle should, be taken as an arbitrary test of negligence. In the case of *Lucas, adm’r*v. *New Bedford and T. R. R. Co.,*(6 *Gray,*64,) the court must have assumed that the rate of speed of the cars was plainly such as to enable the court judicially to know that the deceased, (Mrs. Lucas,) was wanting in ordinary care in attempting to leave a car moving at that rate.

The case of *Mulhado*v. *The Brooklyn City Railroad Co.,*(30 *N. Y. Rep.*370,) wás put expressly upon the ground that the plaintiff had made an attempt to alight from the car while stationary, and that it was *“ the setting it in motion before he had accomplished that,*which was the cause of the injury.” That is, that the sudden start, *without notice,*that caused the injury. No case has been presented to us, nor have I been able to find one, that goes the length of deciding that descending from a vehicle while in motion, however slow, is to be taken notice of judicially as *ipso facto*an act of - negligence in law. Nor am I yet prepared to adopt such doctrine.

If the actual rate of speed of a vehicle, the carelessness of the mode of descent, or the want of mental or bodily capacity to make the descent in a proper manner, renders, in fact, the attempt to alight while the car is in motion, an act of rashness, such attempt would necessarily be an act of negligence, in fact, sufficient to exempt the owner of the vehicle from liability for any concurring negligence of his servants. But negligence must always be relative, and dependent upon attendant circumstances, except in extreme or plain cases where the court may take judicial notice of it. It must, therefore, always be a question of fact for a jury. It cannot be denied that the degree of risk in descending from a moving vehicle actually depends upon the mode of descent, speed of the vehicle, and the capacity of the person descending to control and manage his body and limbs ; and yet it is proposed to ingnore such fact, by the rule of law suggested. If descending from a moving vehicle be want of ordinary care, it is yet daily, hourly, and constantly practiced without injury. Such descent, where not necessary, may possibly be *prima facie*evidence of want of .care, if the *384injury is traceable to the motion of the vehicle. I think, therefore, in all doubtful cases, and except in the plain and extreme cases before alluded to, where the injury is palpably caused by the motion of the vehicle, and where such motion is so rapid as to render escape from injury in case of such attempted descent, if not inevitable, highly improbable, the questions should be submitted to the jury, how far such motion had contributed to the accident, and how far the rate of speed rendered an attempt at descending by the party injured, such an act of rashness as is generally termed legal negligence.

I am, of course, unprepared to accede to the other extreme, that carrying a passenger beyond his place of destination warrants any act of rashness, of which no man of ordinary caution would be guilty, in escaping from his quasi imprisonment. A prior wrong, whether completed or continued, for which the law affords an ample remedy, cannot justify such a subsequent act to exempt from the consequences of such wrong as no prudent man would commit, and thereby make such wrongdoer liable for the consequences of such act. Indeed, I am unable to see how the omisssion of the defendants to stop their car when requested, has any bearing on any question in this case, except on the propriety of the plaintiff’s preparing himself to descend at Forty-fourth street, upon which, being first abused, he was so struck by the driver, as to cause him, in attempting to evade a second blow, in his fright, to fall off. Such previous failure to stop the cars can hardly properly be said to be an act of negligence at all, certainly not' one material on the question of the cause of the accident, unless the plaintiff would, by such failure, become entitled to employ a desperate mode of alighting, and was injured by its employment.

I concur, therefore, in thinking a new trial should be granted, in order to submit to the jury four questions : (1.) Whether an attempt to descend from the car in question by the plaintiff, at the rate at which it was moving when he fell, was an act of negligence. (2.) Whether the plaintiff was in the act of voluntarily descending when he fell. (3.) If it was not an act of negligence, or the plaintiff was not so descending, *385whether he fell in consequence of the conduct of the driver. (4.) And, lastly, whether such conduct of the driver was in any way connected with the discharge of his duty, or the apparent scope of his authority. *(Weed*v. *Panama Railroad Company,*17 *N. Y. Rep.*362.)

Hew trial granted.