Opinion
February Term, 1898.
Gilbert D. Lamb, for the appellant.
George Holmes, for the respondent.
The learned trial justice dismissed the complaint on the ground that the plaintiff was given a reasonable opportunity to alight. He so ruled as matter of law. We think this was error. Whether the time here given was reasonable was, under the circumstances, a question of fact for the jury.
The station in question was terminal. There was consequently no necessity for dispatch as in the case of temporary stoppage at a way station. At the terminus a passenger may reasonably act upon the assumption that as the transit is ended the train will probably remain where it is at least for some brief period. Then, too, the car here was so crowded that many persons had to stand in the aisle. It also appeared that the other passengers had not proceeded more than 80 or 100 feet from the exit of the car before the train was suddenly backed. The jury might properly have found that the defendant's employees thus acted precipitately. These employees should have considered the situation as it was. They knew, or should have known, that such closely-packed cars could not be vacated in a moment. Upon the evidence the jury might have found that but a few seconds elapsed from the time when the car stopped until it was started back, and that the act of the defendant's employees in starting it back when and as they did was precipitate and negligent.
There was no question of contributory negligence. The train was at a standstill when the plaintiff attempted to alight, and there was absolutely nothing in the surroundings from which any sudden movement, either backward or forward, could reasonably have been anticipated.
Our conclusion is that the question of the defendant's negligence in backing the train at the time, in the manner and under the circumstances disclosed, was one of fact, which should have been submitted to the jury.
The judgment and order appealed from should, therefore, be reversed, and a new trial granted, with costs to appellant to abide event.
RUMSEY, PATTERSON and O'BRIEN, JJ., concurred; VAN BRUNT, P.J., dissented.
Judgment and order reversed, new trial granted, costs to appellant to abide event.