
    Philip Golberg, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.
    
      (Supreme Court, General Term,Second Department,
    
    
      Filed July 2, 1891.)
    
    Railroads—Negligence—Injury to passenger.
    Plaintiff was a passenger on one of defendant’s trains, and upon its reaching his station he got out on the side opposite to the station and was struck and injured, before he could cross the track, by a train which came from the opposite direction and did not stop before passing the car he had been in. The evidence was conflicting as to whether he was warned not to get out on that side, and there was evidence that the rule requiring passengers to get off on the side next the station was not so observed but that it was a common occurence for them to get off on the other. It, also, appeared that the steam from the engine obscured the view in the direction from which the other train came. Sdd, that a verdict for the plaintiff was justified by the evidence.
    Appeal from judgment in favor of plaintiff, entered on the verdict of a jury, and from order denying motion for a new trial on the minutes.
    
      Frank Loomis (D. W. Tears, of counsel), for app’lt; Wm. Riley, for resp’t.
   Barnard, P. J.

—The plaintiff was injured by a train of defendant’s at Hastings, on the 12th of September, 1889. It was a contested fact upon the trial, whether or not the plaintiff was a passenger on the defendant’s road on the train from which he claimed to have alighted before the injury. The plaintiff testified positively that he was on the train, ana he was supported by a witness, Goodwin, and by Fromberg, a passenger, who saw the plaintiff get off at Hastings. The jury has found that the plaintiff was a passenger.. The train stopped at Hastings so that the engine and tender were north of a road-crossing going to the river. The smoking car was next to it, and the plaintiff was in the passenger car next to the smoking car. ' The station is on the east of the track, of which there are three at this point. The plaintiff wished to go to the river, and got out on the west side of the car. Before he got across the tracks between him and the river, he was struck by a train going south. There was proof given tending to show that the plaintiff was warned not to get off on the west side, and that he was warned of the approaching train which injured Mm. This was met by evidence tending to show the contrary; that no notice was given where to get off, and that the rule requiring passengers to get off on the side next to the station was not so observed but that it was a common occurrence for passengers to get off on the west side of the train at this point. There is no such preponderance of testimony as calls for a reversal of the verdict as against the evidence. There was proof given tending to show that steam escaping from the engine obstructed the passengers’ view of a train approaching from the north. The rule required a slow rate of speed, and this rule was not violated, but the negligence, if any, was made out by the entry of the train into a station at the rate of speed at which the south bound train did while passengers were getting off the cars, and did not stop before passing the car delivering passenger’s.

The recovery seems to be justified by the principle established in Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y., 355 ; 22 N. Y. State Rep., 697.

The facts are very similar in the two cases. The admission of the rule of the company regulating the running of trains under the circumstances presented by the evidence was properly received. The importance of the evidence was considered by the court of appeals in the Parsons case.

As bearing upon the defendant’s negligence evidence was given tending to show that the view north from the place where plaintiff stood was obstructed by steam. The judge in stating the obligation of the plaintiff to look for an approacning train was accompanied by a statement that the testimony was that there was escaping steam to obstruct the view.

The fact was not assumed by the judge. All questions of fact were carefully left to the jury. ¿

The judgment should, therefore, be affirmed, with costs.

• Dykman and Pratt, JJ., concur. 1  