
    Hattie E. Minor, Plaintiff, v. The Lehigh Valley Railroad Company, Defendant.
    
      Negligence — carrying a passenger past her station and then requiring her to alight on a steep embankment, down which she falls.
    
    Where a passenger is carried on a train past the station for which she has pur- . chased a ticket and the train is then stopped on a steep embankment to enable her to alight, and she alights, slides down the embankment and is injured, a proper case is presented for a jury to decide whether a safe and fit means of alighting from the train was furnished by the railroad company; and the question as to the passenger’s contributory negligence is also one for the jury.
    Motion by the plaintiff, Hattie E. Minor, for a new trial made upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Monroe Trial Term.
    
      Upon the 15th day of October, 1895, and at about four o’clock in the afternoon of that day, at a station known as “Rochester June* tion,” the plaintiff purchased a ticket for Red Creek, and took a train upon the defendant’s road with the intention of riding to the latter place..
    Red Greek is a small station a short distance north of the junction, at which trains stop when there are passengers to get on or off.
    Soon after entering the defendant’s train the conductor took up the plaintiff’s ticket and passed on into the baggage car. When the train reached the station at Red Creek it did not stop, but ran by at a high rate of speed. The plaintiff thereupon went into the baggage car. in search of the conductor, and informed him that he had carried her past her destination. The conductor replied that he had forgotten all about her, and, pulling the bell cord, stopped the train. The plaintiff thereupon went back to the seat which she had occupied in the passenger coach to obtain some articles which slie had left there, and, while picking' them up, the conductor came' to the door and told her to “hurry off” or “get off.” She thereupon went out on to the platform and started to get off upon the east side of the car. She -says that she had a bottle of vinegar in one hand and a basket in the. other. In getting off she took hold of the railing with- one hand, retained the bottle in the other, and placed her basket upon the car step.
    At the point where the train . stopped, which was at least half a mile beyond the depot, there was a steep embankment, the slope of which was covered, with small smooth stones.
    The conductor stood upon the platform of the car as the plaintiff' attempted to alight, but rendered her no assistance whatever. A brakeman, however, did take hold of her arm as she was going down the steps, but remained on the train while doing so.
    In getting off the train, the plaintiff testified that she kept hold of the railing with her right hand until both feet were down, and that when she got upon the ground she slipped or slid down the' embankment into the ditch at the bottom thereof.
    At this time she was pregnant, and the evidence tends to show that she received physical injuries which were quite serious in their character.
    A nonsuit was directed at the close of the plaintiff’s case, to which direction an exception was taken, and the same, with such other exceptions as appear in the case, was ordered.to be heard by this court in the first instance.
    
      E. B. Fenner, for the plaintiff.
    
      George F. Yeoman, for the defendant.
   Adams, J.:

The defendant is a common earner of passengers, and although it does not insure the safety of persons who ride upon its trains,'yet its undertaking and liability are such as to require it to exercise the most exact care and diligence, not only in the management of its trains and cars, but also in the structure and care of its track and in all the subsidiary arrangements necessary to the safety of its passengers. (Story Bailm. § 601.)

Moreover, it is under a statutory obligation to furnish adequate facilities at the usual stopping places of its trains for the accommodation of persons getting on or off the cars, and to “ take, transport and discharge such passengers * * * at, from and to such places on the due payment of the fare * * * legally authorized therefor.” (Laws of 1890, chap. 565, § 34.)

The -plaintiff confessedly purchased a ticket of the defendant which entitled her to ride from Rochester Junction to Red Creek, and to be safely discharged from the defendant’s train at the latter plac

It is not disputed that the defendant failed to fulfill the obligation -which the relation thus entered into with the plaintiff imposed upon it, but it appears that, instead of so doing, it carried her a considerable distance beyond the point at which she was entitled to be discharged from the train and required her to leave the train at a place where no facilities whatever were furnished for her accommodation, convenience and safety. It follows, therefore, that if the plaintiff’s injury was. the result of the defendant’s failure to perform a duty'which was' expressly enjoined by a statute of this State, she is entitled to maintain her action, because such failure is, of itself, negligence. (Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535; Gorton v. Erie Ry. Co., 45 id. 660.)

This case consequently resolves itself into the simple question of whether or not the defendant’s negligence can be said to have been the proximate cause of the injury of which the plaintiff complains, and it is to be examined upon this review solely with reference to a correct determination of that question. At the- outset then it maybe asserted without the least fear of contradiction that, in all probability, the accident would not have occurred if the defendant had not violated its statutory duty; that is, if it had. deposited the plaintiff at the station at which she was entitled to be deposited. For at that station, it is fair to assume, suitable accommodations existed for the care and convenience of passengers who had occasion to alight from the defendant’s cars. But" this circumstance, of itself, does not necessarily connect the plaintiff’s injury with the' defendant’s negligence. For, although she was carried beyond her destination, she might still have been furnished a safe exit from the train and thus have been enabled to reach her home, which it appears was in that vicinity, without suffering any more serious results than the personal inconvenience which would be occasioned by being obliged to walk back to the station, and in these circumstances she would perhaps be remitted to her right to recover such damages as she had sustained in consequence of the defendant’s breach of contract.

To proceed, then, a step further in the case, we conclude that inasmuch as the defendant had sold this plaintiff a ticket to Red Creek, which its conductor had taken up- under the implied agreement to stop his train at that station, the duty rested upon him, when apprised of the fact that he had. carried the plaintiff past her destination, to either back the train up to the depot or else stop it at some point where the plaintiff could alight without exposure to unnecessary hazard.

Did he do this ? He certainly did not cause the'train to return to the station, but instead thereof he stopped it upon an embankment, which, if the plaintiff’s evidence is to be believed, was steep and slippery, and then permitted her to alight with but little or no assistance from any of the defendant’s employees. These facts, uncontradicted and' unexplained, would be sufficient, we think, to permit a jury to find that the defendant did not furnish the plaintiff a reasonably safe ánd fit means of alighting from its train, and that it was consequently guilty of negligence which was the proximate cause of the latter’s injury. (Hulbert v. N. Y. C. R. R. Co., 40 N. Y. 145; Brassell v. N. Y. C. & H. R. R. R. Co., 84 id. 241; Armstrong v. N. Y. C. & H. R. R. R. Co., 66 Barb. 437; affd., 53 N. Y. 623; Lewis v. Pres., etc., D. & H. C. Co., 145 id. 508; Robson v. N. E. Ry. Co., 12 Moak’s Eng. Rep. 302; Brown v. C., M. & St. P. R. Co., 54 Wis. 342; Foy v. L. B. & S. C. Ry. Co., 114 Eng. C. L. 225.)

As the question of contributory negligence was clearly one for the jury, we think it was error in the learned trial court to direct a nonsuit, and that the plaintiff’s motion must, therefore, be granted.

All concurred, except Follett, J., not sitting.

Motion granted and a new trial ordered, with costs to abide the event.  