Adelaide L. Wells, Respondent, v. Steinway Railway Company of Long Island City, Appellant

Adelaide L. Wells, Respondent, v. Steinway Railway Company of Long Island City, Appellant. Negligence — injury to one who after leaving a car steps upon a loose rail left in the gutter■—contrilmtorynegligen.ee. Where, by reason of the old rails of a street railroad being in process of replacement by new ones, a passenger is obliged to leave its car before reaching her destination, and after leaving the car steps on one of a number of rails laid by the railroad company in a continuous line along the side of the street, thereby causing it to tilt and throw her to the ground, the railroad, in an action brought against it by the passenger to recover for the injury thus done to her, is not entitled to have the jury charged that “ the plaintiff saw the rails, and after looking at them decided they were safe for her to step upon', and for her error of judgment defendant is not liable." Appeal by the defendánt, the Steinway Railway Company of Long Island City, from a judgment of the Cjounty Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 24th day of September, 1896, upon the verdict of a jury, and also from an order bearing date the 18th day of September, 1896, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. Eugene L. Eushe, for the appellant. Adolphus D. Pape and Samuel Campbell, for the respondent..' [MAJORITY — Goodrich, P. J.:] Goodrich, P. J.: The defendant is a common carrier of -passengers, its route running along Borden avenue, and ending at the ferry at the foot of that street in Long Island City. On November 30, 1895, the defendant was taking up its old rails from Borden avenue and replacing them with new ones. The old rails were placed in the gutter or on the sidewalk,, and there is conflicting testimony as to the manner in which the- rails were laid,, whether on their bottoms or edges, and whether some were laid on top of others, and whether they were laid in a continuous line", or whether occasional openings were left between the ends for passage-of' persons to and from the sidewalk. About half-past ten o’clock in the morning of that day, the plaintiff was a passenger upon one of the defendant’s cars which stopped. about 150 feet from its usual stopping place near the ferryhouse because .the track had been taken up for the purpose of repairs. The conductor notified the passengers to alight, and the plaintiff got out and went to the southerly side of the street in order to reach the ferry. She passed around the rear end of the car; and finding, as she testified, no passage between the ends of the rails, stepped upon one of them which tilted and threw her to the ground. ; There is other evidence confirming her testimony. On the other hand, there is testimony on the part of the defendant contradicting the statement that the rails were laid in a continuous line without openings between the ends of of them. The foreman of the defendant’s laborers and other witnesses testified that there were no rails to the north of the track, and only two rails in the gutter on the south, and that these had been left, there only a couple of hours and were properly and securely laid. The whole evidence raised questions of fact as to the method of placing and piling the rails, and the number and location of them, the continuity of the rails, and whether there were occasional openings between the ends of them. These questions were fairly submitted to the jury and their verdict imports a finding on these facts in favor of the plaintiff. Undoubtedly, the defendant, while repairing its road in the manner indicated, was justified in requiring its passengers to alight at the place of the accident, but it was bound to see that the displaced rails were placed in such a manner as not to endanger the safety of its former passengers. This question was fairly submitted to the jury. Nor does it matter that the street to the north of the track was free and unincumbered. The plaintiff had the right to go to the south side of the street which was on her route to' the ferry. "Whether or not she was negligent in attempting to cross the rails was a question for the jury, and that fact has been found in her favor. We are thus brought to the questions of law involved. The defendant moved to dismiss the complaint on the ground that the plaintiff had ceased to be a passenger of the defendant; this was denied, but the court charged that when the plaintiff alighted from the car the duty of the defendant, so far as the relation of carrying was concerned, had ended, but that the plaintiff was entitled to reach her destination at the ferry under such conditions and sur-, roundings and circumstances as would not place her in undue peril. It remains to notice one refusal to charge. “ I ask you to charge that plaintiff saw the rails and after looking at them . decided they were safe for her to step upon, and for her error of judgment defendant is not liable.” This request assumed that the plaintiff saw, or could see, "that the rails were so firmly laid that there was no danger in stepping upon them. She was only obliged to exercise reasonable judgment and care in this respect, and she is not chargeable with absolute knowledge whether or not it was perfectly safe for her to attempt to cross. The court did charge that if by the “ exercise of reasonable care plaintiff could have seen the • danger and ought to have apprehended the danger of the situation, she was chargeable with negligence, for she was not at liberty to take even doubtful chances of the consequences of crossing these rails.” We see no reason for which the judgment should Be reversed. All concurred, except Hatch, J., dissenting. Judgment .and order affirmed,, with costs.