negligence in operating the train, or from one or more or all of these causes.

In discussing this supposed error, it is conceded by the appellant's counsel, that the main controversy between the parties was as to the cause of the breaking of the rail. The plaintiff claimed that the rail broke for want of sufficient support, the ties under the rail being rotten, and the rails not being well spiked down, etc. On the other hand, the defendant claimed that the ties under the rail were good, and the rail properly spiked, and the like, and the break was caused by the action of the frost alone. To say the least, on this issue there was a strong conflict of evievidence." Under this view of the state of the evidence, which is certainly as favorable for the appellant as its learned counsel could make it, we are of the opinion that the Court committed no error in its refusal to give the third instruction, above quoted, at the ap pellant's request. In the case as stated in said instruction, it was not sufficient, we think, for the appellant to show that the broken rail was "sufficient in size and free from all defects;" but, in order to relieve itself of the burthen of the issue in the case as stated, it was necessary that the appellant should have gone further, and have shown that such broken rail had been properly laid down and spiked, on sound and sufficient cross-ties.

The next point made by the appellant's counsel in argument is, that the court erred in refusing to give the first and sixth instructions asked by the appellant. These two instructions were as follows:

"1. If the caboose in question was good and sufficient for running with safety while upon the road of the defendant, the fact that it was unable to resist the crash when thrown from the track and road does not constitute a case of negligence against the defendant, for not providing a good and sufficient car or caboose for carrying passengers."

"6. If the road of the defendant was good and sufficient for safety, and if the car was thrown from the road, without any carelessness or neglect of the defendant, by the breaking of a rail, or from some hidden or unavoidable cause, and if the car in which the plaintiff was riding was sufficient and safe for running while it remained on the road, you cannot find against the defendant on the ground that if the car had been stronger the injury might not have occurred, or not been so severe."

The court did not err, we think, in its refusal to give these two instructions, or either of them, to the jury trying the cause. will not do to say, as a matter of law, that a railroad company has performed its full duty as a common carrier of passengers, when it has furnished for their carriage a car or caboose, which will run with safety while upon its road, but will be unable to resist the crash when thrown from its track. Yet this is substantially what

the court was asked to tell the jury in each of the two instructions above quoted. The instructions do not state the law correctly, and the court very properly refused to give them.

The appellant's counsel next complain of the action of the court in amending and modifying the latter part of the seventh instruction, asked by the appellant, and in giving the instruction as amended and modified. We set out the part of said instruction to which the complaint of counsel applies, as follows:

"For instance, if there were rotten and defective ties, defective chairs and loose spikes, at other points in the road, such facts, if proven, would not make a case of negligence at the point of the accident, nor render the defendant liable for the injury, unless [such defective condition was shown at the point of the accident, and] it was further shown that such defective condition caused or materially contributed to the accident."

The amendment and modification of the foregoing part of the seventh instruction by the court consisted in striking out therefrom the words which we have enclosed within brackets, and in inserting therein the words which we have italicized, at the place where they now appear. In their brief of this cause the appellant's counsel say that the plain and obvious meaning of the seventh instruction, as asked, was this: "That the jury had no right to infer a defective condition of the road at the place of the accident, from proof of a defective condition at other points. The instruction as given said to the jury, in effect, simply this: that proof of defects in the road at other points would render the defendant liable, if such defects caused or contributed to the accident. This was correct, but it did not cover the point asked." We agree with counsel that the instruction, as amended, modified and given, was correct; and we are of the opinion that the court did not err, either in refusing to give the instruction as asked, or in amending and modifying the same in the manner indicated, and as it was given. Appellant's counsel say, in their brief, that the court erred in refusing to give the second instruction asked by the defendant; but they have failed to point out the supposed error therein, or to discuss any question thereby presented. Under the settled practice of this court, this alleged error must, therefore, be regarded as waived.

The court, at the appellant's request, submitted to the jury trying the cause, the following question of fact:

"5. At what time (giving the hour and minute) did the wreck occur, on the 23d of March, 1877, on the road of the defendant?"

The jury first answered this question as follows: "From the evidence adduced, we cannot so accurately answer." But this answer having been objected to, the jury retired under the direction of the court, and afterward returned this answer to the question:

"From the nature of the question, we cannot so positively answer." Over the appellant's objection, the second answer was accepted by the court, and the jury were discharged from the further consideration of the question. It is claimed by the appellant's counsel that this action of the court was erroneous, but we cannot so regard it. On this point counsel say: "Two witnesses at least testified that the wreck occurred between 11.40 and 11.45 A.M." It is certain, we think, that the jury could not, from the evidence of these two witnesses, give "the hour and minute" at which the wreck occurred; and it was the precise time to a minute, and not an approximation of the time, which the question required the jury to give in their answer thereto. It seems to us that each of the answers of the jury was a sufficient answer to the question submitted to them, under the evidence as stated by the appellant's counsel. The question was so framed that it might well have been understood by an accurate and liberal minded jury to require from them a direct and positive answer to a minute, or none at all; and as they could not, under the evidence as stated by counsel, answer to a minute, their answers were that they could not answer so accurately or so positively as the question seemed to require them to answer. We have no doubt that the jury answered the question conscientiously; and the action of the court, in discharging them from the further consideration of the question, was right and proper, as it seems to us.

The only other matter complained of by the appellant's counsel is mentioned in their brief in the following language:

"We further submit that a new trial should have been granted for each of the 28th, 29th, 30th and 32d reasons assigned for a new trial. But as this brief is already too long, we must content ourselves with simply calling the attention of the court to these reasons." This is all that counsel have said on the question presented. Under the practice of this court, and with all proper respect for the learned counsel, we think that we must content ourselves with simply saying that the questions arising under these reasons for a new trial, if there were any such questions properly saved, must be regarded as waived.

We find no error in the record of this cause for which the judgment below can or ought to be reversed.

The judgment is affirmed at the appellant's costs.
Petition for a rehearing overruled.

See Cleveland, etc., R. R. Co. v. Newell, post, 483.

STEPHEN D. NOLAN, Respondent,

v.

THE BROOKLYN CITY AND NEWTOWN R. R. Co., Appellant. (Advance Case, New York. November 22, 1881.)

Plantiff took passage on a street car of defendants and rode on the front platform, as the defendant allowed smoking only there and he was smoking. The conductor took fare from him and allowed him to remain without objection. There was abundance of room on the seats inside the car. By a jolt of the car he was thrown off and injured. The statute of New York relieves railroad companies from liability where they post on their cars warning against riding on the platform and furnish seats to the passengers within the car. Defendants had posted this notice only: "Passengers are forbidden to get on or off the car while in motion, or on or off the front platform, or on or off the side except nearest the sidewalk." Held, in an action by plaintiff for the injury, that the notice of defendant not forbidding passengers to ride on the platform, the statute did not relieve defendant from liability. Held, further, that independent of the mandate of the statute it is not, even in the case of steam cars, negligence per se for a passenger to stand on the front platform of a moving car.

Charles B. Alexander, for appellant.

Frederick A. Ward, for respondent.

FINCH J.-This is one of those cases where the real quarrel is with the verdict of the jury, and the struggle on appeal is to avoid their solution of the question of fact. Whether that can be successfully done, within the limits of our power of review, is the question to be considered.

There were

The plaintiff at a late hour of the evening took passage upon one of the street cars of the defendant company. but two or three other passengers, and abundance of room and vacant seats inside. Nevertheless, the plaintiff, who was smoking, rode upon the front platforın. He did so, he says, because it was the custom of the line to permit no smoking elsewhere, but to permit it there. While thus riding on the platform he claims to have been thrown off and injured by the negligence of the driver. His presence upon this platform, it is now insisted, was per se negligence, and bars his right of recovery. No decisive authority for this proposition has been cited to us. The printed rules of the company in connection with the general railroad act are first relied upon. (Laws of 1850, p. 211, § 46.) That act relieves the companies from liability, where they post in their cars a warning against riding on the platform and furnish a seat to the passenger within the car. Such a notice was claimed to have been given in this case, and the rule posted in the car was produced. That rule is in these words, viz.: "Passengers are forbidden to get on or off

the car while in motion; or on or off the front platform; or on or off the side, except nearest the sidewalk." This rule does not at all forbid riding on the front platform. It is the getting on or getting off from that part of the car which is forbidden; evidently because a misstep or an accidental fall would there be more dangerous than at the rear platform. But once on, not a word of warning is uttered against remaining and riding there. The efficacy of the statute failing, it is next argued that the authorities determine the front platform to be a place of danger, and the passenger who without necessity rides there takes upon himself the risk of accident. We do not so understand the decisions to which our attention is called. In Phillips v. Rensselaer & S. R. R. Co., 49 N. Y. 177, the passenger undertook to get upon the car while in motion, and was plainly guilty of contributory negligence. In Clark v. Eighth Ave. R. R. Co. (36 N. Y. 135), the passenger was riding on the steps of the car, a position palpably more dangerous than riding on the platform. In Ward v. Central Park R. R. Co. (11 Abb. N. S. 411), it appeared that the track was in bad condition from accumulations of snow and ice, of which the passenger was fully cognizant, and which the court say was suggestive of the "extreme probability" of a jar or jolt. In Solomon v. Central Park, etc. (1 Sweeney, 298), the boy was sitting on the step of the front platform and was thrown off by a jolt. In all these cases there was some element warranting an inference of negligence beyond and outside of riding on the front platform. These authorities do not establish the doctrine asserted; on the contrary the rule is settled that, independent of the mandate of the statute, which we have seen has no application here, it is not, even in the case of steam cars, negligence per se for a passenger to stand on the front platform of a moving car. (Willis v. Long Island R. R. Co., 34 N. Y. 670; Hardencamp v. 2d Ave. R. R. Co., 1 Sweeney, 490; Ginna v. 2d Ave. R. R. Co., 67 N. Y. 596.) The question is one of fact for the jury, taking into view all the circumstances of the case. (Morrison v. Erie R. R. Co., 56 N. Y. 307; Maguire v. Middlessex R. R. Co., 115 Mass. 239; Westchester & Phil. R. R. Co. v. McElwell, 17 P. F. S. 311; Meesel v. L. & B. R. R. Co., 8 Allen, 234; Wharton on Negligence, § 366.) That must necessarily be the rule in a case like the present. Not only was no notice, such as required by the statute, given to the passenger, forbidding him from riding on the front platform, but he was expressly permitted so to do by the act of the conductor in taking his fare while in that position, and the proven custom of the company to require passengers who were smoking to ride on that platform. If there has been any doubt about this question it may now be deemed settled, that where the notice required by the statute is not given, it is not per se negligence for a passenger to ride on the front platform of a street car.