Mary A. Weakley, as Administratrix, etc., of John J. Weakley, Deceased, Respondent, v. The New York Central Railroad Company, Successor to The New York Central and Hudson River Railroad Company, Appellant

Mary A. Weakley, as Administratrix, etc., of John J. Weakley, Deceased, Respondent, v. The New York Central Railroad Company, Successor to The New York Central and Hudson River Railroad Company, Appellant. Third Department, November 10, 1915. Railroad — negligence — removal of person in enfeebled condition from train for failure to pay fare — proof justifying recovery. Action to recover for the death of a person who was put oil "a railroad train at a way station by the conductor because, having passed his destination, he refused to pay an additional fare. There was evidence that the decedent was suffering from a nervous breakdown, was under the influence of liquor and acted in an irrational manner when the additional fare was demanded. It further appeared that the conductor, on compelling the decedent to alight from the train, asked a bystander to look after him. The night was dark and wet, and to reach an adjoining hamlet the decedent was required to cross the defendant’s tracks. On the day following, his dead body was found beside the tracks, there being no definite proof as to how he met his death. On all the evidence, held, sufficient to justify a finding by the jury that the conductor, and the company he represented, had notice of the decedent’s enfeebled condition and that a verdict for the plaintiff was not against the weight of evidence. Appeal by the defendant, The New York Central Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 11th day of May, 1915, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 3d day of May, 1915, denying defendant’s motion for a new trial made upon the minutes. Visscher, Whalen & Austin [William L. Visscher of counsel], for the appellant. Harry V. Borst, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: The plaintiff’s intestate, Weakley, was in poor health, suffering from a nervous breakdown, and at the time of his death was under the influence of liquor and had not taken any food for that day. He was riding with his wife upon the defendant’s car from Utica to Amsterdam. As the train approached Amsterdam his wife informed him that they were arriving at Amsterdam. She carried a part of the baggage out upon the platform, entered the car and took the remaining baggage, and then discovered that her husband was not following her. She told the trainman that the man should get off, and they rapped on the window to him and attracted his attention. He merely turned around or moved, whereupon the trainman put his stepping block upon the platform of the car as the train was about starting, and after it had started the trainman pulled the bell rope but the train continued. Later the trainman asked Weakley if he knew that he was supposed to get off at Amsterdam and he answered he did. The trainman informed the conductor that Weakley should have got off at Amsterdam, but gave him no other information. After the train left Amsterdam, the conductor applied to Weakley for his transportation and he replied he did not have any. The conductor asked him where he was going and he said Amsterdam. He was then informed that the train had left Amsterdam and asked if he did not want to go to Schenectady, to which he replied he guessed so, or something to that effect. The conductor told him the fare would be thirty-two cents. Weakley said he would not pay any fare, and the conductor asked him if he expected to ride for nothing, and he made no answer. The conductor asked him his name and he told him it was none of his business, or something to that effect. The conductor went through the train and found a foreigner, who refused to give up his ticket, saying he had delivered his transportation to Amsterdam. He refused to pay to Schenectady. The conductor then told Weakley that he must pay his fare or get off at Hoffman’s. When the train arrived at -Hoffman’s, Weakley arose from his seat with his shoes in his hands. The conductor told him it was wet and he must put on his shoes before he went out. He put on his shoes. The shoes had been taken off several times on the trip as he had trouble with his feet. The conductor then assisted him off the train at Hoffman’s, the foreigner got off and the conductor, as he says, walked over to an unknown man standing on the ground and requested him to look out for Weakley crossing the track. It does not appear what reply the unknown man made or that he did anything. The train was stopped at Hoffman’s to put the two passengers off. The little hamlet of Hoffman’s, of twelve, or fifteen houses, is across the track from the station. The lights were visible in the village. There was a light in the signal tower about 120 feet west of the station. Its lights, however, were shaded and threw no reflection upon the road. North, and nearly parallel to the defendant’s tracks, runs a State road and the trolley road. A dirt road extended from the river to the vicinity of the trolley station. A cluster light was at the trolley station but it was not observable from the road near the defendant’s tracks. The trolley station was 600 or 700 feet up the road from the defendant’s tracks. In order to reach the trolley station, the State road or the village, Weakley must cross the defendant’s five tracks. If he went in the opposite direction he would reach the Mohawk river. The next morning Weakley’s dead body was found about 1,000 feet easterly from the station, near the track upon which the train ran. It is not known what train killed him. It was a dark, wet night and about eleven-thirty-seven when the train stopped at Hoffman’s. The verdict rests upon the theory that the conductor was negligent in putting a man in Weakley’s apparent condition from the train at the place where he did. The defendant’s rules require the conductor, in case a passenger refuses to- give up his ticket or pay his fare, to cause the train to be brought to a stop at a regular station, or near some dwelling house, and request the person to leave the train, and if he refuses to remove him therefrom. They further provide: “ It should not be in such a place, in such weather, or such unreasonable hour as might ordinarily endanger the health or safety of the person ejected. The person ejected must not be a child, a person of unsound mind, or in such feeble or helpless condition as to be unable to take care of himself or herself at the point where ejected.” The fact that the conductor asked a bystander to take charge of Weakley is some evidence that the conductor knew he was unable to take care of himself. The knowledge which the company had of the man being carried by his station, of the efforts of the wife and trainman to get him from the car, of his attempt to leave the train with his shoes off, and all the circumstances, gave notice to the company that there was something the matter with him. The rule governing the conduct of a conductor under such circumstances is a fair test of the duty of the defendant. The jury may well have determined that Weakley was causód to leave the car at such a place, in such weather and at such an unreasonable hour as might endanger his safety, and that he was in such a helpless condition as to be unable to take care of himself at the point where ejected. It is evident that he was not able to take care of himself. The only question is whether the conductor or the company had notice of that condition. The circumstances were sufficient to justify the jury in finding such notice. We cannot say, therefore, that the verdict is against the evidence. The judgment and order-should, therefore, be affirmed, with costs. Judgment and order unanimously affirmed, with costs.