Opinion
November Term, 1899.
George A. Strong [ H.W. Bridges with him on the brief], for the appellant.
Stephen C. Baldwin [ Frederick A. Martyn with him on the brief], for the respondent.
The evidence as we view it would have warranted the conclusion that the deceased was thrown from the car by reason of a sudden violent jerk of a character inconsistent with its prudent and careful management. This condition we have already held sufficient to warrant a finding of negligence in the operation of the car, and there is nothing, so far as we are able to discover in the circumstances of this case, which removes it from the application of the rule. ( Hassen v. Nassau Elec. R.R. Co., 34 App. Div. 71; Dochtermann v. Brooklyn H.R.R. Co., 32 id. 13.) It is fair to assume, we think, that the deceased, as he stood upon the running board of the car, was using such means as were furnished for security to a person standing thereon. He had ridden some distance and maintained his position, and the language of one of the witnesses who saw him is that as "the jerk came * * * Mr. Brainard was knocked off." The language of the other witnesses, and the fact that a person must use a support to remain upon the running board while a car is in motion, justify the inference that it was the sudden jerk which caused the fall and not any lack of making use of the supports. The car was crowded with passengers, and riding upon the running board was not per se negligence.
The fact that the deceased had an opportunity to occupy the seat vacated by his wife, and voluntarily surrendered such right to another passenger, does not charge him with contributory negligence as matter of law. Such question is usually one of fact and is dependent upon the circumstances. ( Lehr v. Steinway H.P.R.R. Co., 8 N.Y. St. Repr. 813; S.C., 118 N.Y. 556; Still v. Nassau Electric R.R. Co., 32 App. Div. 276.) In the present case the surrender was made to a woman, who may be presumed to have been weaker than the deceased. Custom, even at Coney Island, has not deadened all sense of courtesy; and if it had we should continue to think that the law of negligence has still such a respect for the ameneties of life as not per se to charge as negligence the surrender of a seat by a man to a woman.
The judgment should be reversed and a new trial granted.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.