87 N.Y. 63 | NY | 1881
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *65 This is one of those cases where the real quarrel is with the verdict of the jury, and the struggle on appeal is to avoid their solution of the question of fact. Whether that can be successfully done, within the limits of our power of review, is the question to be considered.
The plaintiff, at a late hour of the evening, took passage upon one of the street cars of the defendant company. There were but two or three other passengers and abundance of room and vacant seats inside. Nevertheless, the plaintiff, who was *66
smoking, rode upon the front platform. He did so, he says, because it was the custom of the line to permit no smoking elsewhere, but to permit it there. While thus riding on the platform, he claims to have been thrown off and injured by the negligence of the driver. His presence upon this platform, it is now insisted, was per se negligence, and bars his right of recovery. No decisive authority for this proposition has been cited to us. The printed rules of the company in connection with the General Railroad Act are first relied upon. (Laws of 1850, p. 211, § 46.) That act relieves the companies from liability where they post in their cars a warning against riding on the platform, and furnish a seat to the passenger within the car. Such a notice was claimed to have been given in this case, and the rule posted in the car was produced. That rule is in these words, viz.: "Passengers are forbidden to get on or off the car while in motion; or on or off the front platform; or on or off the side, except nearest the sidewalk." This rule does not at all forbid riding on the front platform. It is the getting on or getting off from that part of the car which is forbidden; evidently because a mis-step or an accidental fall would there be more dangerous than at the rear platform. But once on, not a word of warning is uttered against remaining and riding there. The efficacy of the statute failing, it is next argued that the authorities determine the front platform to be a place of danger, and the passenger, who without necessity rides there, takes upon himself the risk of accident. We do not so understand the decisions to which our attention is called. In Phillips v. Rensselaer S.R.R. Co. (
It is further claimed that no negligence of the defendant was shown. It must be freely confessed that the evidence, taken altogether, is very unsatisfactory; but that is not the question here. It comes up in the form of a motion for a nonsuit which was denied, and that ruling must be sustained where the evidence is conflicting and the inferences to be drawn are doubtful. (Belton v. Baxter,
An exception was taken to the ruling of the court permitting a witness to be asked on his cross-examination if he had been expelled from the fire department. The question was improper, because the fact sought to be proved was neither pertinent to the issue, nor did it relate to any specific fact which tended to discredit the witness, or impeach his moral character. (Peopleex rel. Phelps v. Oyer T. Co. of N.Y.,
We think the judgment must be affirmed, with costs.
All concur.
Judgment affirmed. *69