
    Sarah A. Flack, Respondent, v. Nassau Electric Railroad Company, Appellant.
    Negligence— change of grade in a street, leaving a railway resting upon an embankment— duty of the railway company to warn a passenger about to alight of the dangerous condition — its duty to furnish a safe place to alight.
    
    ■Where the effect of lowering the grade of a street, in "which a street railway is operated, is to leave the, railway resting upon the top of an embankment eighteen or twenty inches higher than the general surface of the street in that vicinity, and the railway company has been made aware, by the happening of accidents to passengers while alighting upon the embankment, that the change in the street grade has created a condition of danger, it is bound to warn, . against such danger, a passenger about to alight on the embankment at a point where the edge is six or seven inches beyond the step of the caí-, and where the side of the embankment slopes outward to a point at the bottom two and one-half feet beyond the car step, although the change of grade was not effected through the agency of the railway company, but through that of the city authorities.
    
      The failure to give such warning renders the railway company liable for personal injuries sustained by the passenger in consequence of the soil of the embankment giving way beneath her feet, causing her to fall to the surface of the street.
    The dangerous condition cannot be said to have been so obvious as to warrant the court in determining, as matter of law, that the passenger was guilty of contributory negligence, although the accident occurred in the daytime.
    
      Semble, that the duty of a street railway company to furnish its passengers with a safe place at which to alight, is confined to the terminal points of the railway, and to the regular stopping places designated by the officers of the company, and does not extend to a place, not one of those mentioned, at which the car stops at the instance of a passenger.
    Appeal by the defendant, the Nassau Electric 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 Kings on the 7th day of January, 1899, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 30th day of January, 1899, denying the defendant’s motion for a ne.w trial made unon the minutes
    
      Henry Yonge, for the appellant.
    
      Thomas E. Pearsall for the respondent.
   Willard Bartlett, J. :

The evidence offered in behalf of the plaintiff upon the trial of this action authoi'ized the jury to infer the existence of a condition of things at the time of the accident which befell her, which would-have sustained the verdict in her favor. She was a passenger on one of the defendant’s cars running through New Utrecht avenue. Desiring to alight, she motioned to the conductor to stop, and the car stopped near Fifty-seventh street. As she stepped from the caito the ground the soil gave way under her feet, and she fell to the surface of the street, sustaining a fracture of the hip. It appears that at the time of the accident the tracks and roadbed of the defendant’s railway, between Fifty-sixth street and Fifty eighth street, on New Utrecht avenue, were from eighteen to twenty inches higher than the general surface of the avenue in that vicinity, the street having been cut down to the lower level several months before. The roadbed and railway thus constituted an embankment from eighteen to twenty inches high along the middle of the avenue. The top of this embankment at the point where the plaintiff left the car extended six or seven inches beyond the step, but the embankment slanted outward, so that at the bottom it extended perhaps two and one-half feet beyond the car step.

The gravamen of the complaint was that the defendant negligently maintained its roadbed at the place where the accident occurred in a dangerous, defective, improper and unsafe condition, and invited and permitted the plaintiff to alight thereon, thereby causing her to suffer the fracture of the hip already mentioned and other severe injuries ; and the case was submitted to the jury on the theory that the plaintiff could not recover unless the place which gave way under her feet was a part of the defendant’s roadbed. The jury were also expressly instructed that the term “ roadbed ” did not include any of the ground outside the end of the sleepers.

The defendant introduced no testimony, and the proof in behalf of the plaintiff did not show by whose agency the general surface of New Utrecht avenue was lowered so as to create, for the time being, the embankment along which the defendant’s railroad was then operated. There was evidence that other similar accidents had previously happened to passengers alighting from the cars of this railroad company under similar circumstances, while the street ivas in the same condition, and this proof rendered the defendant chargeable with notice that its roadbed in that neighborhood was likely to give way under persons leaving its cars, and imposed upon it the duty of exercising greater caution than might otherwise have been necessary to afford passengers an opportunity to alight in safety, even if the defendant was in nowise responsible for lowering the adjacent surface of the avenue. A knowledge that such change created a condition of danger which might not be obvious to outgoing passengers, called for the exercise of some degree of care, either by warning or otherwise, to prevent accidents such as that which befell the plaintiff. If the defendant was unable to maintain its own roadbed in a condition safe for passengers to step upon by reason of the action of the city authorities in lowering the grade of the street, it was at all events bound to inform its passengers who were about to alight upon that roadbed that they could not do so with safety.

The only doubt in my mind in regard to sustaining this judgment is suggested by an exception to the charge. The learned trial judge, after instructing the jury that the defendant as a common carrier of passengers was bound to exercise reasonable care and diligence, not only in the management of its cars, but also in the structure and care of its track and appurtenances necessary to the safety of the passengers, went on to say : “ This includes the obligation to furnish the passenger a reasonable, safe and fit means and place of alighting from its cars, when the cars are stopped for the purpose of permitting the passengers to get off.” Counsel for the defendant expressly excepted to the instruction that it was the duty of the defendant to provide a reasonably safe place for the plaintiff to alight on. As a general proposition I do not understand it to be the law that a street railway company, whose car is brought to a standstill at the instance of a passenger, not at any terminal point or at a stopping place regularly designated as such by the management of the road, is bound, in the discharge of its duties as a common carrier, to furnish to the passenger a safe place at which to alight. The passenger under such circumstances chooses the place for himself, and unless there is evidence that its dangerous character was known to the persons operating the car, and that they allowed him to alight without giving him any caution, the railroad company is ordinarily not responsible for the unsafe condition of any part of the street except that which constitutes a part of its roadbed or which it is legally obligated to keep in repair. x (Bigelow v. West End Street Railway Co., 161 Mass. 393.) In Wells v. Steinway Railway Co. (18 App. Div. 180), the basis of the defendant’s liability was not its failure to provide a safe place for the plaintiff to alight on, but was its negligence in obstructing her passage through the street on the way to the neighboring ferry after she had ceased to be a passenger.

There is a case in Georgia which asserts the obligation of a street railway company to provide a safe place of egress for passengers, more strongly than any other decision which I have been able to find. There the court say : “ Companies engaged in carrying passengers on cars along a public street are not understood as engaging to make safe landing places, but to select them.” (Augusta Railway Co. v. Glover, 92 Ga. 132, 146.) An examination of the facts of that case, however, shows that the court was there speaking of the duty of a street railway company to select places at points of destination where passengers can leave their cars in safety, and that the remark quoted can hardly have referred to the stoppage of a street car at the instance of the passenger at any point which he may choose along the route.

I am inclined to think, therefore, that the instruction of the court to which this exception relates would have to be regarded as too broad, if we took the same view of it as does the learned counsel for the appellant, and considered it as though it stood alone, separate and apart from the rest of the charge. It must be remembered, however, that the court had distinctly impressed upon the minds of the jury the proposition that they could not find a verdict in favor of the plaintiff unless the accident occurred in consequence of the dangerous condition of that portion of defendant’s roadbed upon which the plaintiff stepped. As to this part of the street, it was a place which the defendant was bound to exercise reasonable care to keep safe for the use of passengers invited or permitted to alight upon it, so that when all portions of the charge which relate to this subject are construed together, we find that the jury were merely instructed that if the defendant provided any part of its roadbed as a place for passengers to alight on, it was bound to exercise reasonable care to keep that particular place safe for the purpose. In this instruction there was certainly no error.

Although the accident occurred in daylight, the conditions of danger were not so obvious as to charge the plaintiff with contributory negligence as a matter of law, and that question was properly left to the jury.

In both aspects of the case 1 think the judgment should be affirmed.

Judgment and order unanimously affirmed, with costs.  