Opinion
Argued December 11, 1899
Decided January 9, 1900
William J. Kelly for appellant. Augustus N. Weller for respondent.
The plaintiff's testator having neither looked nor listened as the train approached which caused his death, the query is whether the court must say that his negligence contributed to the result, or the jury may say that it did not.
The jury were at liberty to find from the evidence before it that the defendant had started the train on the south track substantially every morning for many years, and that during all that period of time, upon the announcement by the doorman of "the rapid transit for Brooklyn," the people were accustomed to rush out of the station, over the station platform to the north tracks, then across them to and upon the platform, in readiness to board the train as soon as it came to a stop; and that this custom had been so long continued that such an announcement by the doorman on the morning in question, constituted an invitation to every passenger there, including the plaintiff's testator, to pass out of the station, across the station platform, then over the north tracks and to the platform of the south track, with the assurance that the way was not only free from obstructions, but would remain so for such a reasonable time as would enable them to pass to the train in safety, and, therefore, it was for the jury to say whether in accepting that invitation and proceeding as plaintiff's testator did, without looking and listening, and in the manner described by the witnesses, he was nevertheless exercising that reasonable care and caution which the situation demanded. Cases in which the principle is invoked which lies at the foundation of this decision, are Terry v. Jewett ( 78 N.Y. 338); Brassell v. N.Y.C. H.R.R.R. Co. ( 84 N.Y. 241); Palmer v. N.Y.C. H.R.R.R. Co. ( 112 N.Y. 234); Oldenburg v. N.Y.C. H.R.R.R. Co. ( 124 N.Y. 414).
The order of the Appellate Division should be affirmed.
All concur, except GRAY, J., not voting.
Order affirmed, and judgment absolute ordered for the plaintiff on the stipulation, with costs.