Sarah Strong Jones, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

Sarah Strong Jones, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. Negligence — inf try from cm engine "bitching into a car which the plaintiff was entering several hundred feet from, a station—proof of custom, — objection that an answer is irresponsive. In an action to recover damages for personal injuries resulting from a fall sustained by the plaintiff in consequence of an engine backing into a. car on the defendant’s railroad which she was attempting to- board at a point from ■ 200 to 400 feet from a station, the questions whether the defendant was guilty of negligence and the plaintiff of contributory negligence: are properly submit- • ted' to the jury, where the plaintiff produces evidence from which a jury might find that a. custom existed, with the acquiescence if not with the encouragement of the defendant’s employees, of taking passengers on the train at places otlierthan the station. ’ It is not error for the court to refuse to strike out evidence which is improper because it is not pleaded, under an objection that it is irresponsive;-the latter objection lies only with the examining counsel. • Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of-the’ Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 12th day of April, 1899, upon the verdict of a jury for $5,412.75, and also from an order entered in said clerk’s office op. the 12tli day of April, 1899, denying the. defendant’s motion for a new trial made upon the minutes. In February, 1894, the plaintiff attempted to board one of the defendant’s trains at or near a station known as Fairport, upon its road. The tram, was a local freight, with one passenger coach, and-' was the only passenger train westward on the West Shore road. Its time of departure varied anywhere from nine o’clock in the morning to twelve. In passing westward it was its custom to stop first east of the station. At that place cars were taken off and put on. There was more or less shifting, and when the train was finally made up the evidence is that the conductor went to the station to see if there were any passengers, and, if any were there waiting, the train pulled up to the station and stopped. This action was tried once before, resulting in a verdict for the plaintiff. This judgment was affirmed by the General Term and reversed by the Court of Appeals. The evidence of the plaintiff is to the effect that she went to the station to take this train; that she asked some one in the ticket office if that ivas the train and received no answer to her question; that she went to the platform and there saw the baggagemastcr; she asked him if that was the local and he answered yes, and asked her if she wanted to take it; she said she did; that he thereupon waved to a man in that direction, and called to him to “ take on this lady; ” that she thereupon said she thought she would go and get upon the car when it was standing still. The car was then east of the station, from 200 to 400 feet, and there was a broad gravel path along the side of the track past the place where she finally attempted to get' on the car. She got upon the car, and, as she was about to •enter it, the engine backed into the car with such force as to throw her and cause the injury for which she here claims damage. Cassius C. Davy, for the appellant. Elbridge L. Adams, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: In the prevailing opinion of Chief Judge Parker, written upon the reversal of the former judgment, it was held that no custom was shown to take passengers on except at the station, and that, without evidence sufficient to authorize a finding of such a custom, the defendant did not owe the duty to use care at that point to protect any One who might be boarding the train without authority. Upon this trial, however, the plaintiff has produced evidence from which a jury could find that such custom existed with the acquiescence, if not the encouragement, of thé defendant’s employees. The evidence was such that the question could not have been taken from the jury, and they have twice found for the plaintiff thereupon. . The plaintiff’s contributory negligence was properly submitted to-the jury. This has been once held by the General Term in this department, but apart from that authority it cannot be said as a. matter of law, under the circumstances of this case, that the plaintiff was required to look for the' approaching engine when slie.got: upon the car. She . might assume even though the engine was-approaching that it would approach the car with such care as not-to cause, her injury. Nor can the verdict, as a matter of law, be said to be excessive. There was. a sharp conflict in the evidence, and the plaintiff’s witnesses were by the jury believed. Upon that evidence the verdict: was justified in amount. . The amendment to the.complaint was not necessary. The variance, if such there was, was at most an immaterial one, and could, be corrected by an amendment either before or after an objection. The case has once been tried, and the defendant had full knowledge of the issues which the plaintiff tendered. It could not in. any way have been misled. Various exceptions are called to our attention, only one of which needs be discussed. At folio 139, this question, was asked: “ Q. After you went home, what, did you do ? Did you work at all ? A. I wasn’t able to work. I had to have a-nurse for my- daughter and I had to hire a woman to do. my work. Defendant’s counsel moved to strike out that she had a nurse for her daughter and a woman to do her-work, on the ground that the answer is not responsive and incompetent. Overruled. Exception.” 1 That the answer is not responsive is an objection that lies only- with the examiningcounsél. The answer was incompetent only because it wás not pleaded. She was a widow and might have recovered such damages if she had pleaded them. But that it was not pleaded' ^feas' not made a ground of the objection nor called to the attention of the-court, The motion to strike out the answer was,.therefore, properly denied. . The defendant can make no complaint of the fairness with which the issues in this, case were submitted to the jury. In a very able charge the learned judge clearly outlined the exact questions which the jury were to determine,. That there was sufficient evidence to justify a finding of the jury upon the several questions presented to-them we have no doubt, .and no exception lias been called to our attention upon which this judgment can be reversed. The judgment and order should, therefore, be affirmed, with costs. All concurred, except Adams, J., not sitting. Judgment and order affirmed, with costs.