The question was properly submitted to the jury. See e.g., Fardette v. New York Stamford Ry. Co., 190 App. Div. 543, 180 N.Y.S. 179 (Sup.Ct. 1920), aff'd, 198 App. Div. 943, 189 N.Y.S. 943 (1921), aff'd, 233 N.Y. 660, 135 N.E. 959 (1922); Keefer v. Daum, 262 App. Div. 1044, 30 N.Y.S.2d 507 (1941); see also Duffy v. City of New York, 16 Misc.2d 1015, 184 N.Y.S.2d 1006 (Sup.Ct. 1958), modified and aff'd, 7 A.D.2d 988, 183 N.Y.S.2d 863 (1959). We find no error in the charge.
But when it elects to take on board of one of its cars such a passenger it is bound to use reasonably adequate care for his protection or else to eject him from the car. ( Fardette v. N.Y. S. Ry. Co., 233 N.Y. 660.) In addition to these questions involving the merits, two other questions arose in connection with the admission of some evidence and a charge made by the trial judge.
The instant situation is thus distinguishable from those cases in which carriers were held liable for actions or omissions relating directly to the activity for which they were contracted (PJI 2:162). Thus, in the course of moving passengers from one designated location to another, carriers are duty bound to remove a passenger who is or who has become too ill to travel and to place such passenger in a safe place ( Jones v New York Cent. R.R. Co., 4 N.Y.2d 963; Middleton v Whitridge, 213 N.Y. 499); to keep passengers in a safe position while traveling ( Longacre v Yonkers R.R. Co., 236 N.Y. 119; Fardette v New York Stamford Ry. Co., 233 N.Y. 660); and to conduct them safely to their destinations ( Elliott v New York R.T. Corp., 293 N.Y. 145; Fagan v Atlantic Coast Line R.R. Co., 220 N.Y. 301). The act involved herein — the service of alcoholic beverages or food to an allegedly intoxicated passenger — is not recognized at common law as violative of the duty of a common carrier. I therefore conclude that the afore-mentioned holdings should not be extended to a case such as this where no actual knowledge of decedent's state was established and where plaintiff's claim is predicated upon the carrier's performance of a service which is merely incidental to its principal function. ¶ Although the dismissal of an action after counsel's opening statement is not generally a favored practice (see Davidson v Hillcrest Gen. Hosp., 40 A.D.2d 693), it was entirely proper for the trial court to have dismissed the action in the instant case. In my view, it would be futile to remit the matter for a full trial inasmuch as there was no special du