Opinion
June 15, 1906.
Winfred T. Denison, for the appellant.
L.E. Warren, for the respondent.
The train had reached its regular stopping place at the plaintiff's destination. There was clearly an invitation for her to alight at that point. She had a right to alight, and was not obliged to allow herself to be carried beyond her home, and it was the duty of the defendant to afford her reasonable safety in alighting by either affording a reasonably safe place and facilities or warning and aiding her in alighting, and it was her duty to exercise the care and caution of a reasonably prudent person with the knowledge that she possessed. ( Onderdonk v. N.Y. S.B.R. Co., 74 Hun, 42; Boyce v. Manhattan R. Co., 118 N.Y. 314; Fox v. Mayor, 5 App. Div. 349; Cartwright v. Chicago G.T. Ry., 52 Mich. 606; Werner v. Chicago Northwestern R. Co., 105 Wis. 300; Brodie v. Railway Company, 46 S.C. 203; 24 S.E. Rep. 180; Delaware, L. W.R.R. Co. v. Perret, 60 N.J.L. 589; Pat. Railway Accident Law, §§ 261-263, and cases cited; 1 S. R. Neg. [5th ed.] §§ 509, 510.) Even if the jury found that there were holes or depressions in the surface of the broken stone or gravel used as a platform for passengers to alight upon, they were scarcely warranted, on the testimony of the plaintiff, in finding that such holes or depressions had any causal connection with the injuries sustained by the plaintiff. They appear to have resulted from her jumping from the step of the car. If the plaintiff's foot did not strike upon level surface, or if she slipped on any loose stone or gravel, it would seem that she could have so testified. The jury should not be permitted to speculate and find that, because there may have been holes or depressions at some points, her foot landed in one of them without any evidence to substantiate it.
The case would, therefore, seem to hinge upon the question as to the height of the step above the surface of the ground between the tracks. If the step were of usual height there would seem to be no justification for the plaintiff's act in jumping from it on this occasion, when she had been able on all other occasions, both in the daytime and at night, to descend in safety without jumping; and in view of the fact that the conditions had remained the same for many years, and there is no evidence that any passenger ever sustained injuries in alighting upon the gravel or broken stone used as a platform, prior to this time, negligence probably could not be imputed to the defendant. ( Lafflin v. Buffalo Southwestern R.R. Co., 106 N.Y. 136; I.C.R.R. Co. v. Hobbs, 58 Ill. App. 130; Delaware, L. W.R.R. Co. v. Napheys, 90 Penn. St. 135.) If, however, the steps of this car were exceptionally high and more than two feet above the surface of the ground upon which she was required to alight, as indicated by her testimony and that of her cousin, the court, we think, would not be warranted in ruling as matter of law that she was guilty of contributory negligence, or that the defendant was free from negligence. If the railroad company furnished a car with a step so high that a passenger could not conveniently alight by stepping down, the jury would have been warranted in finding that it was guilty of negligence in not furnishing a platform or stepping box, or assisting passengers in alighting or warning them of the danger and assuring them that they would be afforded ample time to alight. Negligence could not be imputed as matter of law to the passenger, who had a right to alight and who determined that she could alight with greater safety by jumping than in attempting to step or let her weight down, steadying herself by taking hold of the rail with one hand. We are of opinion, however, that the weight and preponderance of the evidence shows that the step of this car was not of the extraordinary height above the rail testified to by the plaintiff and her cousin. Their testimony at most is an estimate or expression of opinion, and in view of the positive testimony of the witnesses who made the measurements, it was entitled to little weight. It is not probable that the defendant had in use in its regular passenger service a car with steps nearly double the height of those of the ordinary passenger cars. Moreover, the verdict of the jury in finding the plaintiff free from contributory negligence also appears to be against the weight of the evidence. If the step of the car was unusually high the plaintiff was aware of the fact. She could have crossed to the platform of the next car and descended from that, or she could have allowed her escort to pass ahead and assist her, or she could have called upon the conductor, who, according to her evidence, was within speaking distance, to aid her. There is no evidence that it was necessary to hurry. The passengers were not urged to alight quickly. No signal appears to have been given for the train to start, and for aught that appears plaintiff could have had ample time and would have been afforded, had she called upon the conductor, facilities for alighting in safety when she discovered that the step was too high for her to step to the ground. Other passengers used the step in safety and, so far as appears, without finding it necessary to jump. It is not contemplated that passengers will jump from cars, and when they do and sustain injuries they should show some real necessity for taking that course in alighting.
It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM and CLARKE, JJ., concurred; O'BRIEN, P.J., and PATTERSON, J., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.