120 N.Y. 467 | NY | 1890
The plaintiff suffered personal injuries which she alleges were occasioned by the negligence of the defendant. *469
They were caused by her fall when she was proceeding to step from the platform of one car onto that of the next car preceding it, through an opening between them which she did not observe. The facts were, that the plaintiff, with her brother Mr. Russell, and her brother-in-law Mr. Gilbert, were at the Peekskill depot to take the train due there 7.46 P.M., for New York, on July 6, 1884; that the train was late, and when it arrived, the plaintiff, with her party, got onto it and proceeded through the cars to the rear, and finding all the seats occupied they, upon the information of the conductor that another car would be put onto the train, and, at his suggestion, alighted from the rear of the train and proceeded toward the forward end of it. The engine, with a section of the train, had then been severed from the rear portion and proceeded east, thence back on to a switch, to there take on an empty car. The plaintiff, with Russell and Gilbert, got onto the front platform of the most easterly car of the stationary portion of the train to await the connection with it of the empty car which, soon after, was backed up, and when they came together, persons standing on the platform passed from it into the empty car, Gilbert with them. He called to the plaintiff to come into it, which she undertook to do, and when proceeding to step from the platform of the one to that of the other car, she fell between them onto the track, and received the injury complained of. The open space between the platforms of the two cars was occasioned by the failure, when they came together, of the draw-heads to catch and complete the coupling, in consequence of which the cars receded, making an opening between their platforms of several feet. The coupling apparatus was automatical, such as is in general use and, so far as appears, well approved. There was no defect in it or in the engine or train in their equipment in any respect. It appears that the coupling process requires for its completion a certain force in making the contact, that it is not always accomplished at the first attempt, and that it is more difficult to do it when, as was in this instance, the train is on a curve of the road. The failure to make the coupling when *470
the draw-heads first were brought in contact was not, nor was the gap between them, which followed it, occasioned by any negligence of the defendant. The question, therefore, arises whether the plaintiff's injury was caused by any fault of its employees. The relation of passenger and carrier between the plaintiff and defendant commenced when she went onto its premises and purchased her ticket for the purpose of taking the train, and the defendant assumed the duty of reasonable care for her protection while proceeding to take the train. This, however, gave to her no right to enter a car before it was attached to the train. The plaintiff evidently supposed when the cars came together that they were coupled, and the empty one ready to receive passengers. This was the appearance which the shock of the contact gave. At that time the adjacent platform of the next car back of it was fully occupied with passengers ready to enter. The plaintiff was in the rear of them, and standing just inside the car. The defendant's employes were in a situation to see whether the coupling was complete, and with them was the duty, if it was not so, of informing the passengers and requesting or directing them to wait until it was done. This, those employes testify they did do by distinctly telling them to keep back, to stand back off the platform, and that this was repeated. If this were so, and nothing further occurred to induce the passengers to go forward when they did, and when the plaintiff sought to do so, it would be difficult to find any support for the charge of negligence against the defendant. But there is evidence tending to prove that at the moment the cars came together, the conductor halloed "all aboard," and that the plaintiff, and those with her, heard it; and that, thereupon, the passengers proceeded from the platform of the car on which she was, to pass into that ahead of it, and she followed. The evidence of such announcement of the conductor was contradicted by his evidence and that of the brakemen there. This question was one of fact for the jury, and finding, as it may now be assumed they did, that the conductor, simultaneously with the coming together of the cars, called out as before mentioned, the conclusion of the jury was *471
permitted that it enabled the passengers to understand (unless they saw something to the contrary) that the car was ready for them to enter it. And it may have been treated as an invitation to do so, and as it was given prematurely, or before it was entirely safe to do so, it was the fault of the defendant's employe, which justified the imputation of negligence against the defendant. (Filer v. N.Y.C.R.R. Co.,
The test of contributory negligence or want of due care is not always found in the failure to exercise the best judgment or to use the wisest precaution. Some allowance may be made for the influences which ordinarily govern human action, and what would under some circumstances be a want of reasonable care might not be such under others. (McIntyre v. N.Y.C.R.R. Co.,
This question of negligence in the present case was for the jury, and, therefore, the motion to dismiss the complaint was properly denied.
And there was no error in the refusal of the court to charge, as requested, that the plaintiff was bound to wait in the car, where she was in a safe place, until the coupling was complete. The consideration of this proposition is embraced in what has already been said. The exercise of due care required her to wait until she was induced by what an employe announced, and by it was permitted to suppose and did believe that the cars were so coupled. The court had charged the jury quite fully upon that subject, and the question was submitted to them whether the plaintiff was chargeable in any respect with negligence in proceeding when and as she did, to pass from the car in which she was to the other one, and they were instructed that if the plaintiff was not entirely free from negligence, she could not recover. The case was a close one, but the facts essential to a recovery by the plaintiff were not without evidence for their support. There seems to have been no error in any of the rulings to which exceptions were taken.
The judgment should be affirmed.
All concur.
Judgment affirmed. *474