
    Elwin S. Piper, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    
    Negligence—Contributory.
    A passenger, on discovering the toilet room to be dark, is not, as a matter of law, negligent in not calling the porter and waiting for a light.
    
      Appeal from a judgment entered upon a verdict directed in favor of the defendant.
    
      Jackson & Burr {Jos. A. Burr, Jr. of counsel), for app’lt; Saunders, Webb <b Worcester {Thorndike Saunders and Edwin D. Worcester, Jr., qf counsel), for resp’t.
   Cullen, J.

This is an appeal from a judgment for the defendant upon a verdict at circuit directed by the court. The plaintiff, on an evening in January, took a sleeping car at Albany, bound for New York, where the train was to arrive at 6:30 in the morning. His testimony was to the effect that on the approach of the train to the city, about 6 o’clock, he was awakened by the porter; that, partially dressed, he started for the washroom, which he found wholly dark; that, to comply with a call of nature, he felt for the water-closet, the location of which he knew, having been there the night before; that he grasped for the knob, and found one which he supposed to be that of the closet, but which proved to have been that of the rear door of the car,.which had lpeen left open; and that he was immediately precipitated through it from the train upon the ground, and was seriously injured. That the plaintiff fell from the car was not disputed; but the absence of light, and that the door was open, war disputed. There was no conclusiveness of the evidence in favor of the defendant as justified a direction in favor of the disputed questions of fact. It is therefore to be determined whether, in the most favorable aspect of the evidence, the plaintiff failed, as a matter of law, to_ show any liability on the part of the defendant. The plaintiff, being a passenger on the sleeping car, had the right to expect those conveniences which are furnished by such cars, and for which he had paid. Carpenter v. N. Y., N. H. & H. Railroad Co., 124 N. Y. 58 ; 34 St. Rep. 854. It is a matter of common knowledge that on such cars passengers are expected to use the conveniences of the car during the night, and also are a wakened in time that they may both dress and make their toilets before arriving at their destination. When the plaintiff reached the toilet room he found it dark. He.liad a call of nature, which it was reasonable for him to discharge, provided he did not place himself in danger. We think that it cannot be said as a matter of law that the plaintiff, upon discovering the darkness of the toilet room, should have returned to the body of the car, found the porter, and waited until the room was lighted. The question of contributory negligence, therefore, was for the jury. The defendant’s negligence was also for the1 jury. We think no negligence can be predicated on the character of the car itself. But the absence of light might be found to be negligence, for the duty of the defendant was not only to light the lamps, but also to use reasonable diligence to maintain the light in the toilet room. Negligence possibly might not be predicated from the door being left open. The rules of the company provided that it should be kept closed between the stations. As this was the last car of the train, it was hot necessary to open the door for communication between different cars. It is not entirely clear how this door was required by the rules to be fastened, and it may appear on another trial that it might have been opened by a passenger for any purpose, such as air, or to go out on the platform. But we think, in any aspect of the case, the question of negligence, based on the absence of light, should have been submitted to the j ury.

The judgment should be reversed, and a new trial ordered, costs to abide event.  