
    Thomas M. Sculley, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 14, 1894.)
    
    1. Negligence—Contributory.
    A railroad company is not liable for injuries to a passenger who voluntarily alights from a moving train. He is guilty of contributory negligence.
    3. Evidence—Opinion.
    Any person, who has noticed the movements of trains and judged their rate of speed, may give his opinion on the subject.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.
    
      Lewis E. Carr, for app’lt; John W. Lyon, for resp’t.
   Mayham, P. J.

—The principal contention on this appeal is whether the plaintiff was free from negligence which contributed to the injury of which he complains, in alighting from the car of the defendant while the same was in motion. It is not denied that the defendant, in not stopping its train at the station to which the plaintiff was ticketed, failed in its duty towards him; but it is insisted that the plaintiff, in alighting from the car while the same was in motion, was guilty of such an act of negligence on his part as to preclude any recovery for injury resulting to him from that act. The evidence discloses that while the car was in motion, running at a rate of speed variously estimated by witnesses from six to ten miles an hour, the plaintiff got down upon the steps of the caboose in which he was riding, and jumped from them to the ground, on reaching which he fell, and sustained the injury complained of. At the time of the accident the conductor of the train stood on the steps at the opposite end of the car, and signaled the engineer to stop, by the use of the well-understood and appropriate signal for that purpose, and hallooed to the plaintiff not to alight, which signal plaintiff saw given, but did not bear the conductor’s warning. The proximate cause of this injury was the plaintiff’s alighting from the car while the same was in motion. If he had remained upon the car the accident could not have happened. Was his alighting from the car, under the circumstances of this case negligence ? The case does not disclose any coercion of the plaintiff, or immediate apparent necessity for leaving the car at this time, further than his natural and reasonable desire to alight at the point of his destination, and at which his ticket entitled him to be left. It was in the daytime, and the car had gone about 100 yards past the depot when he jumped from it and received the injury. This act, unexplained, seems clearly to establish negligence on the part of the plaintiff, within a number of recent adjudications in the court of appeals. In Hunter v. Cooperstown, etc., Railroad Co., 112 N. Y. 375 ; 21 St. Rep. 1, the court say: “ Persons are taught from their earliest youth the great danger attending upon an attempt to board or leave a train while it is in motion, and no person of mature years and judgment but has knowledge that such an attempt is dangerous in the highest degree.”

And again, in the discussion of the same case on a subsequent appeal, reported in 126 N. Y. 12, 18; 36 St. Rep. 367, the same court uses this language: “To alight from or board a train in motion is a negligent and hazardous act, which can only be made to appear excusable when, in the situation of a person, he is under such a coercion of circumstances as to raise a fair question as to whether he was really in the free possession of the use of his faculties and judgment.”

If after this train had passed the station at which the defendant, by its contract, was required to allow him to alight, and the plaintiff had discovered that it was about to collide with another train, or any other accident had happened to it. so that the life of 1 the plaintiff had been put in jeopardy, and he had under such circumstances jumped from the car, and been injured, he would, under such conditions, within the decision above quoted, have been freed from the imputation of negligence ; and the defendant, by its negligence in carrying him past the place of his destination, would have been liable. Or if, without any fault of his, he had, pursuant to the request or direction of this defendant’s conductor in charge of the train, alighted at this point while the car xvas in motion, it might not lie with the defendant to insist that the plaintiff was guilty of contributory negligence. At least, it would, then, within the case of Bucher v. N. Y. C. & H. R. Railroad Co., 98 N. Y. 128, have been a question of fact, within the language Miller, J., “for the jury to say, whether any such directions were given by the conductor as authorized' the plaintiff to get off of the car at that time, or made him chargeable with contributory negligence for so doing.” But in this case no such conditions were proved to exist. The train was moving on without any apparent danger of accident, and there is no proof that the defendant’s conductor gave or intended to give the plaintiff any direction, by words or signal, to alight from the car.

ít is true that the learned trial judge left it to the jury to determine whether any signal was given to the plaintiff by the conductor to alight from the car, and, if the signal were such that the plaintiff could fairly and reasonably understand that it was intended as a signal from the conductor to him to alight, it would have had the same significance as if words were used. This part of the charge was excepted to by the defendant, and we think the objection was well taken. The jury were thus invited or permitted to enter the domain of conjecture and Speculation as to the manner in which the plaintiff might have understood or interpreted a signal, the significance of which was wholly unknown to him, but which was a well-understood signal, between the conductor and engineer of the defendant, and possibly the only one by which the conductor could communicate to his subordinate his wishes or orders in reference to the conduct of the train. There was no evidence that this signal was intended to influence the action of the plaintiff. On the contrary, “the only evidence in reference to the significance of the same was as an order to the engineer, and the plaintiff himself does not claim, except by inference, that he understood it as a signal to him to alight; while it clearly appears from the uncontradicted evidence of the defendant’s witnesses that the signal with the conductor’s hand, spoken of by the plaintiff in his testimony, was to the engineer to stop the train, to which signal the engineer.responded by whistling for brakes.

We are inclined to the opinion that the plaintiff in this case, while abundantly establishing the negligence of the defendant in failing to stop at Stockport station, as it was bound to do, to enable the plaintiff to alight from the train, has failed to prove the other affirmative proposition equally incumbent on him, to authorize a recovery, viz. for want of contributory negligence on his part, and that for that' reason the motion for a nonsuit should have been granted.

We are also of the opinion that it was error to exclude the evidence of the witness Farley as to the rate of speed at which the train was moving at the time of the happening of the accident, fie had taken notice of the movements of trains, and bad judged their rate of speed, and was, we think, proved to be competent to give an opinion on that subject The rate of speed of a railroad train is not purely within the knowledge of experts, and not, therefore, the subject of expert testimony, Salter v. Utica & Black River Railroad Co., 59 N. Y. 632; Northrup v. N. Y., O. & W. Railroad Co., 37 Hun, 299; and while a witness, to give testimony upon that subject, must have some knowledge or experience upon the same, he is not required to have the degree of knowledge peculiar to experts called upon to testily where expert testimony is required, and .give opinions based upon hypothetical questions. The question o.f the rate of speed of this train at the time of the happening of this accident was an important subject of inquiry on the trial, and the exclusion of the offered evidence was error. The judgment should be reversed, and a new trial ordered; costs to abide the event All concur.  