FOLLETT, Ch. J.

The court did not err in refusing to dismiss the complaint or in refusing to direct a verdict for the defendant.

Whether the upright fell upon the plaintiff's arm, and whether its fall was caused by the defendant's negligence, and whether the plaintiff's arm was inside or outside of the car were questions for the jury, and if found in the plaintiff's favor, he was entitled to a verdict.

The principal question discussed on this appeal is whether the court erred in instructing the jury that if they found that the plaintiff's arm was out of the window when injured, it was a question of fact for them to determine, whether, under the circumstances of this case, he was guilty of contributory negligence.

When passengers upon railroads operated by steam have received injuries to their arms by reason of their protrusion from open windows, and have sought to recover damages against their carriers, it has been held in some of the reported cases that such protrusion is, as matter of law, contributory negligence; while in others it has been held that whether it is negligence is a question of fact. This question does not seem to have been determined by any of the appellate courts in this state, unless it can be said to have been passed upon in Holbrook v. Utica Schenectady Railroad Company (16 Barb. 113; 12 N.Y. 244). Whether the arm of the plaintiff in the case cited rested on the sill of the car window or projected through the window was a disputed question. The court charged: "That the company only contracted to carry her safely when she kept within the cars; that it was for the jury to say whether her elbow was out of the cars at the time of the injury, and if it was, it was a circumstance or fact from which they might infer negligence or want of ordinary care on her part. The judge was then requested by the defendant's counsel to charge, as matter of law, that if they found that the plaintiff's arm or elbow was outside of the window of the car when the injury was received, it was an act of negligence and she could not recover; but the judge refused to charge on that subject other than he had charged, to which refusal the defendant excepted." Judge RUGGLES, speaking for the court, said: "In this refusal to charge as requested I was at first inclined to think there was error. But my brethren are unanimously of opinion that the judge had already charged the jury substantially in conformity with the request, and that he was right, therefore, in declining to repeat what he had before stated. I yield to their judgment on this point, and concur in affirming the judgment." It is apparent that the jury had not been charged substantially in conformity with the request, but they had been instructed that it was a question for them to determine whether the plaintiff's elbow was inside or outside the window; and if it was outside it was a circumstance or fact from which they might infer negligence or want of ordinary care on the plaintiff's part. The jury found a verdict for the plaintiff, upon which a judgment was entered, which was affirmed by the General Term and by the Court of Appeals. The judgment in this case is to the effect that whether the plaintiff was negligent in riding with her arm out of the window was not a question of law, but of fact.

In Dale v. Delaware, Lackawanna and Western Railroad Company ( 73 N.Y. 468) the court charged that if the plaintiff negligently, whether consciously or unconsciously, put his arm outside of the window, and thus contributed to the injury, he could not recover; but if his arm, while resting on the sill, was thrown out by a sudden lurch of the car, that fact would not defeat his right to recover. The plaintiff had a verdict, on which a judgment was entered, which was affirmed at General Term, but was reversed by the Court of Appeals for an error in the admission of evidence, the validity of the instruction not being considered. In Hallahan v. N.Y., L.E. W.R.R. Co. ( 102 N.Y. 194), and in Breen v. N.Y.C. H.R.R.R. Co. (109 id. 297), the records show that the jury in each case was instructed that if they found that the plaintiff was riding with his arm protruding from the open window, it was contributory negligence, and no recovery could be had. The plaintiff recovered a verdict in each case, and the validity of the instructions was not, and could not be reviewed.

The courts of Massachusetts and Pennsylvania have held that it is negligent, as matter of law, for a railway passenger to ride with his arm extending through the window, and that no recovery can be had for an injury received by reason of the arm being in this position. ( Todd v. Old Colony Falls River R.R. Co., 3 Allen, 18; 7 id. 207; Pittsburgh Connellsville R.R. Co. v. McClurg, 56 Penn. St. 294.) In other states it has been held that whether such conduct is contributory negligence is a question of fact. (See cases cited in Beach on Contrib. Neg. § 56; 2 Shear. Red. on Neg. [4th ed.] § 519; 2 Wood's R. Law, 1103, § 303; Bishop's Non-contract Law, §§ 1106, 1107.)

In Dahlberg v. Minnesota Street Railroad Company ( 32 Minn. 404) and in Summers v. Crescent City Railroad Company (34 La. An. 139) it was held that whether a passenger upon a street car was negligent in riding with his arm out of the window was a question of fact. We are satisfied that a general rule, applicable to all cases, cannot be laid down, and that whether the question is one of law or fact must be determined by the circumstances of each case. Street railroads are operated under circumstances widely different; some in the crowded thoroughfares of large cities; others in streets little used in suburban districts and in villages. Conduct which would be declared negligent, as a matter of law in one case, might not be so in another. This conclusion brings us to the consideration of the question as to whether the evidence in the case at bar was such as to require the court to rule, as a matter of law, that if the plaintiff's arm was partly out of the window when injured, he negligently contributed to the accident, and could not recover. The accident occurred in the summer, when the windows of street cars are usually open, as the windows of this car were on this occasion. There were but nine or ten passengers in the car. The plaintiff sat in a seat, with his right arm lying on the window sill, wholly within the car, he testified, but partly without, as the conductor and driver testified; but they do not attempt to say how far his arm extended beyond the outside of the car. The evidence does not disclose that there was anything in the condition of the street, or that there was any circumstance which should have caused the plaintiff to have anticipated danger. Two of the defendant's witnesses, the conductor and the driver of this car, gave the plaintiff no warning; and the conductor testified that, though he saw that plaintiff's arm was out of the window, he did not know that he was in danger. This is not an action by a passenger against his carrier, between whom contractual relations exist and out of which reciprocal duties arise; but it is an action against a defendant having a right to a limited use of the street, and required to exercise its right so as not to unnecessarily endanger travelers. We are of opinion that the evidence contained in the record would not have justified the court in charging, as a matter of law, that if the plaintiff's arm projected through the window, and beyond the outer edge of the car, he could not recover.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.