Kleffmann v. Metropolitan Street Railway Co.

Scott, J.: 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. Ho reason is shown why lie 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.