Viemeister v. . Brooklyn Heights R.R. Co.

Werner, J. The foregoing statement of facts makes it plain that the theory upon which this action was brought and tried was, that the plaintiff had received his injuries through the negligence of the defendant in forcing an increased crowd of passengers upon a car already crowded, as a result of which the plaintiff, then a passenger and standing in the car, was pressed against a seat; and while thus situated, starting the car with such a sudden jerk as to bring the plaintiff into violent contact with the seat, and cause the injury complained of. The charge of the learned trial court was mainly consistent with this theory and correct in its application of proper legal principles. It contained a statement to the effect that if the jury should find that the plaintiff received his injuries as the result of a rush of people “ who wanted to get on board at the same time on this crowded car, without the intervention or assistance of the guard,” the defendant could not be held responsible “ because that is another risk that a man takes in a crowded city in trying to get home the same time as everybody else wants to get home.” To this part of the charge plaintiff’s counsel excepted, saying, “ I take an exception to that portion of your Honor’s charge that states that if he was forced on by the other passengers in the desire to get to his home the company will not be liable,” and then continuing with a request to charge as follows: “ And I ask you to charge, that if though forced by other passengers on the car, if he boarded the car in safety, and thereafter the guard pushed other people in and caused the accident the company is liable.” To this request the court responded : “ Certainly I charge that.” For the purposes of this discussion we may assume that the relation of passenger and carrier existed between the plaintiff and the defendant quite as fully while the former stood upon the platfqrm as after he had boarded the car. It was an ele *312 vated structure, access to which was wholly within the control of the defendant. That assumption is purely academic, however, for the platform is not the place where the plaintiff received his injury. The allegations and proofs of the plaintiff fix the interior of the car as the place of the accident, and assign as its cause the excessive crowding of the car by the guard and the starting of the train with a sudden jerk. That is a theory of the case which the jury could not have misunderstood, because it was the only one supported by evidence and argument. But the court did charge that if the accident was caused by a voluntary rush of other persons who wanted to get on board the car, the defendant could not be held liable, and plaintiff’s counsel, instead of contenting himself with an exception to that part of the charge, emphasized his adherence to the theory of the action set forth in the complaint by requesting the court to charge that, even though plaintiff was forced upon the car by other persons, yet, if he boarded it in safety, and the accident ivas caused by the guard’s subsequent forced augmentation of the crowd, the defendant was liable. This request was granted. This was, in substance, a modification of the preceding portion of the charge. Counsel’s acquiescence therein has made the charge as delivered the law of the case and he is bound by it. The charge as a whole was fairly responsive to the theory made and supported by plaintiff’s counsel, and we should not be hypercritical in construing it simply because a jury has unexpectedly rendered a verdict in favor of a railroad corporation. The order of the Appellate Division should be reversed and the judgment upon the verdict affirmed, with costs.