Helen M. Filer, Respondent, v. The New York Central Railroad Company, Appellant

Helen M. Filer, Respondent, v. The New York Central Railroad Company, Appellant. (Argued December 11, 1874; decided December 22, 1874.) Plaintiff, in getting off one of defendant’s cars while in motion, received an injury. In an action to recover damages therefor, it appeared that . she was directed to get off when she did, hut the evidence was conflicting as to whether the direction was given by a brakeman or by a person not connected with the running of the train. The court charged, in substance, that it was immaterial who gave the direction; it was for the ' jury to say whether it was prudent for her, acting under the advice so - given by anybody, to alight from the train. Held, error; that if directed by a brakeman or employe, the plaintiff had a right to assume that she could get off with safety, although the train was in motion; but not so if the direction was given by another passenger, as she could have no reason to suppose the latter knew more about the safety of the act than herself. Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict. This action was brought to .recover damages for injuries received by plaintiff, while getting off a train on defendant’s road, alleged to have been occasioned by defendant’s negligence. Plaintiff took passage at Rochester for Fort Plain, where she arrived about 3 a. m. The brakeman called out the name of the station, the cars moved slowly, but did not stop. Plaintiff went out on the platform, and, while waiting, some one told her that she had better get off, as the train was not going to halt any more. As to who this person was, the evidence was conflicting, plaintiff’s evidence tending to show it was a brakeman, defendant’s, that it was not a person employed on the train but a passenger. Plaintiff attempted to alight, her clothing caught on the step, and she was thrown down and injured. In regard to the advice or direction given to-her, the court charged that he did not see that it would make any difference whether it was a brakeman or any other pei’son, but the question, was: “ Was it prudent for her, acting under the advice thus given to her by anybody, to alight, from that train ? ” To which defendant’s counsel duly excepted. A. P. Laning for the appellant. The court erred in refusing to nonsuit, on ground that plaintiff was guilty of negligence, in alighting from the cars while they were in motion. (Phillips v. R. and S. R. R. Co., 49 N. Y., 177; Nichols v. Sixth Av. R. R. Co., 48 id., 131, 135; Morrison v. Erie R. Co., Folger, J., not rep.) J. H. Martindale for the respondent. Defendant was guilty of negligence. (Filer Case, 49 N. Y., 42-56 ; Down’s Case, 47 id., 87.) The question whether plaintiff was guilty of negligence was properly submitted to the jury. (McIntire v. N. Y. C. R. R. Co., 37 N. Y., 288, 289; Penn. R. R. Co. v. Kilgore, 32 Penn., 292.) The damages were not excessive. (Caldwell v. N. J. Stbt. Co., 47 N. Y., 283.) [MAJORITY — Grover, J.] Grover, J. This case has been before this court upon a previous occasion, when the questions presented were nearly all determined. (49 N. Y., 47; see, also, William Filer v. N. Y. C. R. R. Co., id., 42.) Some of the questions were, upon the present trial, presented in an aspect somewhat different, but not. so varying the legal principle, applicable thereto, as to require further discussion. Upon the last trial, an additional question was presented. The evidence showed that the injury sustained by the plaintiff was caused by her getting off the cars while in motion, and it was insisted, by the counsel for the defendant, that this was contributory negligence on her part, such as to preclude her recovery. To meet this objection,- the plaintiff gave evidence tending to show that she was told by the brakeman to get off where and when she did, but the evidence was conflicting as to whether this direction to her was given by the brakeman or some other person having no connection with the management of the train or any thing to do with it except as passengers. Upon this point the judge charged the jury, in substance, that it was immaterial, and did not make any difference whether such direction w.as given by the brakeman or any other person ; that it was for them to determine whether she was guilty of negligence in getting off after having received such direction from any one. I think this was error. The employes upon a train, including brakemen, are in the line of their duty in assisting passengers in getting on and off the train, and in directing them in procuring seats. Passengers rightly assume that these persons are familiar with all the movements of the train, and know whether they can, under the particular circumstances, get on or off, or moveupbn the train with safety. When the conductor or a brakeman directs a passenger to get off the train, although in motion, such passenger will naturally assume that he knows it is entirely safe, or he would not give the direction. (See cases cited in opinions in above cases.) ¡Not so in case the direction is given by one having no connection with the - train, other than as a passenger. As to such a person, there is no reason to suppose that he knows any thing more about whether it is safe to follow his direction than the one to whom it is given. For the above error in the charge, the judgment must be reversed, and .a new trial ordered, costs to abide event. All concur, except Andrews, J., not voting; Church, Oh. J., not sitting. Judgment reversed.