Appellant's points.

proper glasses, had less than one-half of normal vision. The rule is that if one faculty of sense is defective common prudence requires that an increased vigilance should be exercised to avert danger. Gonzales v. N. Y. & H. Co., 1 Sweeny, 506; Same v. Same, 38 N. Y. Supr. 57; Pierce on R. R., p. 335; Beach Contrib. Neg., § 147. And the question whether, under the circumstances, it was negligence on the part of the plaintiff, considering her physical condition, to stand where she said she did with her hands occupied, is the precise question to be submitted to the jury. In a case where plaintiff's sight was defective, and she was injured by falling into an opening in the street, held to be a question for the jury whether her presence in the street without an attendant was contributory negligence. Davenport v. Ruckman, 37 N. Y. 568, 573. These requests should have been charged. Coleman v. 2d. Ave. R. R., 114 N. Y., 610.

IV. The court erred in refusing to charge in accordance with the requests as to non-payment of fare when demanded. We submit that the court did not place this before the jury in the manner in which under the evidence the defendant was entitled to have it submitted, and that defendant was entitled to a specific charge in accordance with these requests. Coleman v. Co., supra. The demand for fare was made by the pilot on the upper deck. He was the only person authorized to demand payment of her fare. The pilot testified that he demanded payment of her fare, and the plaintiff, after searching in her pockets, said she had no change and would go downstairs, whereupon she went downstairs without paying her fare. The witness saw her leave the ferryboat and go on to the ferry bridge. She then spoke to the deckhand who was on the bridge by the windlass, asking for change for five dollars, which he could not give her. The

Respondent's points.

deckhand did not notice where plaintiff went after this conversation. The plaintiff on the other hand testified she never left the upper deck and paid her fare when demanded. Under these circumstances it is for the jury to say whether or not plaintiff refused payment of her fare and thereupon left the boat. If such was the fact, then plaintiff's subsequent return to the boat without the knowledge or assent of the defendant as a trespasser or as a free passenger imposed no duty upon the latter to carry the plaintiff safely. Those who have not paid their fare and are on the carrier's vehicle neither by his invitation, authorization nor consent, are trespassers. "There must be a true undertaking to carry or the relation of carrier and passenger will not be held to subsist." Beach Contrib. Neg., § 58; Robertson v. R. P. Co., 22 Barb. 91; Eaton v. R. P. Co., 57 N. Y., 382, Waterbury v. N. Y., Cent., 17 Fed. R. 671, Flower v. Penn. R.: R. 69 Pa. 210.

Thomas E. Rochfort, attorney, and with Edward B. Whitney, of counsel, for respondent, on the questions considered in the opinion, argued

I. As to the question whether the plaintiff paid her fare. The exception to the refusal to charge that if she did not pay her return fare defendant is not liable is disposed of by the case of Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306; Thomson on Carriers of Passengers, pp. 43-4 and cases cited. The evidence would not support a claim of fraud, But intent to defraud was not claimed on the trial, Even if the question had been raised it would have been a question for the jury, not the court. MacCullar v. McKinley, 99 N. Y. 357. It is too late. to raise the question now. The only question raised was, did plaintiff pay the return fare? In Doran v. East River Ferry Co. 3 Lans. 105, plaintiff had crossed on the ferryboat and was on her return

Respondent's points.

trip, not having paid the return fare. She was held a passenger, and her recovery for negligence sustained. The court's refusal to make this charge was correct on the authority also of Carroll v. S. I. R. R. Co., 58 N. Y. 133. Bretherton v. Wood, 3 Broad & Bing. 54; Phil. R. R. R. Co., v. Derby, 14 How. (U. S.) 483; Reed v. Holbrook, 4 Bing. 628; Loomis v. Ferry, 17 Wend. 197. The request assumes as uncontradicted a fact not in evidence, or, if in evidence, contradicted: namely, that if she did not pay her fare, she intended to defraud the company, and hence was a trespasser. This fact was for the jury; and hence the request was properly refused. Le Roy v. Park F. Ins. Co., 39 N. Y. 56. When requests to charge matters of law are founded on facts not conclusively proven, it is not error to refuse the requests. Soria v. Davidson, 53 Super. Ct. 470. The exception to the refusal to charge that if she left the ferryboat when her return fare was demanded and afterwards returned without paying fare, then defendant is not liable, fails for the same reason. Defendant's requests are an attempt to obtain a charge that actions capable of an innocent construction are fraudulent as matter of law. But the frand in this case, if any, is a question of fact Macullar v. McKinley, 99 N. Y. 357; Swarthout v. Merchant, 47 Hun, 107; Syracuse Chilled Plow Co. v. Wing, 85 N. Y. 426; Starin v. Kelly, 36 Super. Ct. 366. Moreover, the latter request is vicious as assuming a thing of which there is no proof, namely, that plaintiff did not pay after returning to the boat if she left. The pilot admits that he was not the only person authorized to collect, and in the absence of evidence to the contrary, plaintiff is entitled to all presumptions of innocence and regularity. Morris v. Talcott. 96 N. Y. 107. The court is not required to change an assumed state of facts not proven on the trial. Pratt v. Ogdon, 34 N. Y. 20. Defendant should have introduced the element

Respondent's points.

of intent to defraud into its request if it wished for an exception. But in that case the court might have granted the request. As a matter of fact, the court by clear implication charged the jury that the plaintiff was not a passenger unless she paid her fare thus favoring defendant more than the law would warrant. The whole charge must be read together, and isolated portions cannot be excepted to for incompleteness if the whole conveys the correct impression. Caldwell v. N. J. S. B. Co., 47 N. Y. 282; Losee v. Buchanan, 51 Ib. 492.

II. Defendant's negligence. In an action of this character, it is necessary only for the plaintiff to show a situation which must have been produced by abnormal causes. The onus then rests on the defendant to prove that the injury was caused without his fault. Seybolt v. N. Y., L. E. & W. R. R. Co. 95 N. Y. 568. Such a situation was shown by plaintiff. Defendant knowing that the onus rested on it attempted in vain to explain the accident as due to extraordinary conditions. The charge is fully sustained by the case of Seybolt v. N. Y. L. E. & W. R. R. 95 N. Y. 566; Breen v. N. Y. C. & H. R. R. Co. 109 Ib. 297. Smith v. British, &c. Packet Co. 46 Super. Ct. 87. There was no error in the charge that defendant was bound to use utmost care. Carriers of passengers are bound to use every precaution which skill, care and foresight can provide Caldwell v. N. J. S. B. Co. 47 N. Y. 288," utmost vigilance Carroll v. S. I. R. R. Co., 58 N. Y. 137; utmost care" Maverick v. Eighth Ave. R. R. Co. 36 N. Y. 381; Kelly v. Manhattan Ry. Co. 112 Ib. 443, 451, "highest degree of care" Smith v. British, &c., Packet Co., 46 Super. Ct. 86.

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III. As to contributory negligence. It cannot be necessary to argue that a lady has the right to stand three feet from the stairway and put on her gloves while the boat is coming into port, and that this can

Opinion of the Court, by SEDGWICK, Ch. J.

not in any case be contributory negligence. But defendant cannot argue that this point should have been left to the jury, for he made no such request, but, on the contrary, asked a direction of verdict in his own favor on the point. He is, therefore, estopped to deny that the court had the right to treat the question as one of law. Stratford v. Jones, 97 N. Y. 586; Dillon v. Cockroft, 90 Ib. 649; Ormes v. Dauchy, 82 Ib. 443-448; Herendeen v. De Witt, 49 Hun, 53; Goodwin v. Bunzl, 6 Civ. Pro. 226; Gregory v. The Mayor, 11 State Rep. 506.

BY THE COURT.-SEDGWICK, Ch. J.-The action was for damages, from the negligence of defendant's servants in managing a steamboat. The boat ran on a ferry belonging to defendant. The boat entered the slip on the New York side of the East river and struck against the bridge so that the boat rebounded from the bridge eight or ten feet as the jury might have found. At this time the plaintiff was upon the upper deck, two or three feet from the head of a stairway leading to the lower deck. The re-bound of the boat threw her from her footing down to the bottom of the stairs. The testimony of the defendant's witnesses contradicted the testimony of the plaintiff. The jury gave a verdict in her favor.

The learned counsel presents as an error which requires the reversal of the judgment, that the judge refused to charge, that if the jury find that the plaintiff was standing at the top of the stairs on the ferry boat, or was descending the same at the time when the boat touched the wharf, then the defendant is not liable.

If the request were valid, it would be so on the ground that the position of the plaintiff, referred to in the request, would indicate the contributory negligence of plaintiff. There would be no such indication, however, if the plaintiff, in taking the