45 N.Y.S. 864 | N.Y. App. Div. | 1897
The defendant is a common carrier of -passengers, its route running along Borden avenue, and ending at the ferry at the foot of that street in Long Island City.
On November 30, 1895, the defendant was taking up its old rails from Borden avenue and replacing them with new ones. The old rails were placed in the gutter or on the sidewalk,, and there is conflicting testimony as to the manner in which the- rails were laid,, whether on their bottoms or edges, and whether some were laid on top of others, and whether they were laid in a continuous line", or whether occasional openings were left between the ends for passage-of' persons to and from the sidewalk.
About half-past ten o’clock in the morning of that day, the plaintiff was a passenger upon one of the defendant’s cars which stopped.
Undoubtedly, the defendant, while repairing its road in the manner indicated, was justified in requiring its passengers to alight at the place of the accident, but it was bound to see that the displaced rails were placed in such a manner as not to endanger the safety of its former passengers. This question was fairly submitted to the jury. Nor does it matter that the street to the north of the track was free and unincumbered. The plaintiff had the right to go to the south side of the street which was on her route to' the ferry. "Whether or not she was negligent in attempting to cross the rails was a question for the jury, and that fact has been found in her favor.
We are thus brought to the questions of law involved. The defendant moved to dismiss the complaint on the ground that the plaintiff had ceased to be a passenger of the defendant; this was denied, but the court charged that when the plaintiff alighted from the car the duty of the defendant, so far as the relation of carrying was concerned, had ended, but that the plaintiff was entitled to reach her destination at the ferry under such conditions and sur-, roundings and circumstances as would not place her in undue peril.
We see no reason for which the judgment should Be reversed.
All concurred, except Hatch, J., dissenting.
Judgment .and order affirmed,, with costs.