Opinion
December 7, 1906.
Charles F. Brown, for the appellant.
J. Brownson Ker, for the respondent.
When this case was before this court upon a former appeal ( 104 App. Div. 416), while the judgment was reversed for an erroneous refusal to charge, much doubt was expressed whether the plaintiff had successfully sustained the burden of showing his own freedom from negligence. His evidence in the present record is even more unsatisfactory upon that point, and the evidence as to defendant's negligence is far from convincing. The plaintiff boarded a horse car and stood upon the front platform smoking a cigar. He says that the car was driven rapidly and was bouncing up and down in such a manner that he realized that it was dangerous to remain where he was, yet he made no effort to go inside, where there was plenty of room. No reason is shown why he could not have entered the car if he had so minded, and the fact that he recognized and appreciated the danger of his position and made no effort to put himself in a place of safety convicts him of imprudence, since the accident from which he suffered could not have happened if he had not persisted in a position which he knew to be dangerous. ( Odell v. N.Y.C. H.R.R.R. Co., 120 N.Y. 323; Magar v. Hammond, 171 id. 377.) Under these circumstances the verdict in his favor should not have been allowed to stand.
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
LAUGHLIN and CLARKE, JJ., concurred; PATTERSON, J., dissented.
I concur with Mr. Justice SCOTT. I also think that there was no evidence of negligence on the part of the defendant. The accident was caused by one of the horses stumbling, and the driver struck the horse with the whip, which caused the horse to jump forward, which sudden movement, as the plaintiff alleges, threw him from the platform. If, when the horse stumbled, the driver considered it necessary, to prevent the horse from falling, that he should strike him with a whip, the striking of the horse was not negligence which made the defendant liable for the accident.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.