
    (92 Misc. Rep. 145)
    FRAWLEY v. NEW YORK, O. & W. RY. CO.
    (Oswego County Court.
    October, 1915.)
    Carriers @=>347—Injury to Passenger—Contributory Negligence—Question fob Jury.
    Where, in an alighting passenger’s action for injuries from a fall, due to her skirt catching on a lever which projected between the steps of the car, it appeared that plaintiff had no knowledge of the misplaced lever, and that she did not take hold of the handrail in alighting or attempt to do so, the question whether she was contributorily negligent in failing to take hold of the handrail was for the jury.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. ©=>317.]
    otb(er cases see same topic & KEY-NUMBER, in all Key-Numbered. Digests & Indexes
    Appeal from City Court of Fulton.
    Action by Agnes Frawley against the New York, Ontario & Western Railway Company. From a judgment for plaintiff, and denial of new trial, defendant appeals.
    Affirmed.
    P. W. Cullinan, of Oswego, for appellant.
    Thomas L. McKay, of Oswego, for respondent.
   COVILEE, J.

The plaintiff has recovered a judgment for injuries sustained by her while alighting from defendant’s passenger coach in the city of Fulton. The evidence introduced in her behalf tended to establish the fact that a lever used in operating a coupling was bent or misplaced, so that it projected between the steps of the car, and that while the plaintiff was alighting from the car after it had fully stopped her skirt caught upon the end of this lever, throwing her to the ground and causing the injuries for which recovery was had in this action.

No question is raised as to the submission of the defendant’s negligence to the jury, but the appellant claims that the plaintiff should have been nonsuited by reason of her own contributory negligence. It appears that the passenger coach was equipped with the usual handrails on both sides of the steps, and the plaintiff admitted upon her cross-examination that she was carrying several packages and did not take hold of the handrail in alighting or attempting to do so. The appellant contends that her failure to take bold of the handrail was contributory negligence as a matter of law. The appellant relies principally upon the case of Broadbent v. New York Evening Journal Publishing Co., 147 App. Div. 133, 131 N. Y. Supp. 780. in that case, however, the passageway was slippery and dangerous, which fact was known to the plaintiff, and as the court said;

“With lull knowledge of the condition of the passageway, he made no use of the handrail provided by the defendant * * * to prevent just such accidents, and took no precaution to avoid slipping. He failed to exercise a degree of care commensurate with the condition he knew to exist.”

In the case at bar, the plaintiff had no knowledge of the misplaced lever and did not know of the existence of any danger.

In Martin v. Second Avenue Railroad Co., 3 App. Div. 448, 38 N. Y. Supp. 220, it is held that it is not .negligence, as a matter of law, for a person to get off a street car, which is perfectly still and which has stopped for the purpose of discharging passengers, without taking hold of the handrail. In this, as in kindred cases, the accident was caused by the sudden starting of the car; but the same rule would reasonably apply where the accident was due to any other negligent act of the defendant. A passenger, who without negligence stands upon the platform or step of a moving street surface car, assumes the risk incident to the operation of the car in the customary and ordinary way, such as the movements attendant upon the starting and stopping and passing over the curves and the jolting and rocking of the car, but does not assume those which are exceptional, or which spring from the negligence of tire railway company. Ward v. International R. Co., 206 N. Y. 83, 99 N. E. 262, Ann. Cas. 1914A, 1170.

While this case is not similar to the one under discussion, yet the reasoning is applicable. The plaintiff, who was a passenger and properly on the steps of the car, assumed only those risks which she might reasonably expect and foresee. She did not know of the lever projecting over the step, and was not, as a matter of law, negligent in failing to take hold of the handrail, even if by doing so she might have escaped the consequences of the hidden dangers caused by the defendant’s negligence.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order affirmed, with costs.  