
    Louisa M. Lent, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Negligence—Care required in coupling cars by automatic attachment.
    Plaintiff, with others, hoarded defendant’s train at Peekskill, passed through the train and found no seats, and at the suggestion of the conductor that another car would be put' on, alighted from the train and proceeded toward the forward end. The engine, with a portion of the train, ran ahead to take on the empty car. Plaintiff and her friends boarded the platform of the stationary portion of the train to await the connectian with the empty car, and as the cars came together her friends passed into it, and she attempting to follow fell between the cars, which had separated by the failure of the drawheads to catch and complete the coupling. There was evidence that the conductor had called “all aboard," but this was denied by the servants of defendants. Held, that the conclusion of the jury was permitted that the circumstances enabled the passengers to understand (unless they saw something to the contrary) that the car was ready for them to enter it.
    2. Same—Contributory negligence.
    The call of the conductor may have been treated as an invitation to do so, and as it was given prematurely or before it was entirely safe to do so, it was the fault of defendant’s employee, which justified the imputation of negligence against the defendant, and plaintiff in proceeding to pass into the car was not chargeable with negligence, unless she saw the gap between the cars.
    3. Same.
    There was no error in the refusal of the court to charge, as requested, that plaintiff was bound to wait in the car, where she was in a safe place, until the coupling was complete.
    Appeal from judgment of the general term of the superior court of the city of New York, affirming judgment entered on a verdict in favor of the plaintiff.
    
      Frank Loomis, for app’lt; Aaron Pennington Whitehead, for resp’t.
    
      
       Affirming 8 N. Y. State Rep., 93.
    
   Bbadley, J.

The plaintiff suffered personal injuries which she alleges were occasioned by the negligence of the defendant. They were caused by her fall when she was proceeding to step from the platform of one car on to that of the next car preceding it, through an opening between them, which she did not observe. The facts were that the plaintiff with her brother, Mr. Russell, and her brother-in-law, Mr. Gilbert, were at the Peekskill depot to take the train due there 7.46 p. M. for New York on July 6, 1884; that the train was late, and, when it arrived, the plaintiff with her party got on to it, and proceeded through the cars to the rear, and finding all the seats occupied, they, upon the information of the conductor that another car would be put into the train and, at his suggestion, alighted from the rear of the train, and proceeded towards the forward end of it. The engine with a section of the train had then been severed from the rear portion, and proceeded east; thence back on to a switch, 'to there take on an empty car. The plaintiff, with Russell and Gilbert, got on to the front platform of the most easterly car of the stationary portion of the train to await the connection with it of the empty car, which soon after was backed up, and, when they came together, persons standing on the platform passed from it Into the empty car, Gilbert with them. He called to the plaintiff to come into it, which she undertook to do, and when proceeding to step from the platform of the one to that of the other car she fell between them on to the track, and received the injury complained of. The open space between the platforms of the two cars was occasioned by the failure, when they came together, of the drawheads to catch and complete the coupling, in consequence of which the cars receded, making an opening between their platforms of several feet.

The coupling apparatus was automatical, such as is in general use, and so far as appears well approved. There was no defect in it or in the engine or train in their equipment in any respect. It appears that the coupling process requires for its completion a certain force in making the contact, that it is not always accomplished at the first attempt, and that it is more difficult to do it when, as was in this instance, the train is on a curve of the road. The failure to make the coupling when the drawheads first were brought in contact was not, nor was the gap between them which followed it, occasioned by any negligence of the defendant. The question, therefore, arises whether the plain tiff’s injury was caused by any fault of its employees. The relation of passenger and carrier between the plaintiff and defendant commenced when she went on to its premises and purchased her ticket for the purpose of taking the' train, and the defendant assumed the duty of reasonable care for her protection while proceeding to take the train This, however, gave to her no right to enter a car before it was attached to the train.. The plaintiff evidently supposed when the cars came together that they were coupled and the empty one ready to receive passengers. This was the appearance which the shock of the contact gave. At that time the adjacent platform of the next car back of it was fully occupied with passengers ready to .enter. The plaintiff was in the rear of them and standing just inside the car. The defendant’s employees were in a situation to see whether the coupling was complete, and with them was the duty if it was not so of informing the passengers and requesting or directing them to wait until it was done. This those employees testify they did do by distinctly telling them to keep back, to stand back off the platform, and that this was repeated. If this were so, and nothing further occurred to induce the passengers to go forward when they did and when the plaintiff sought to do so, it would be difficult to find any support for the charge of negligence against the defendant But there is evidence tending to prove that, at the moment the cars came together, the conductor halloed “All aboard,” and that the plaintiff and those with her heard it; and that thereupon the passengers proceeded from the platform of the car on which she was to pass into that ahead of it, and she followed.

The evidence of such announcement of the conductor was contradicted by his evidence and that of the bralcemen there. This question was one of fact for the jury, and finding, as it may now be assumed they did, that the conductor simultaneously with the coming together of the' cars called out as before mentioned, the conclusion of the jury was permitted that it enabled the passengers to understand (unless they saw something to the contrary) that the car was ready for them to enter it. And it may have been treated as an invitation to do so, and as it was given prematurely or before it was entirely safe to do so, it was the fault of the defendant’s employee, which justified the imputation of negligence against the defendant. Filer v. N. Y. C. R. R. Co., 49 N. Y., 47; S. C., 59 id., 351; 68 id., 124; Maher v. C. P., N. & E. R. R. R. Co., 67 id., 55. While such remark of the conductor may have been intended for those not on the train desiring to take it, it cannot in view of the then circumstances necessarily be treated as exclusively applicable to them. There was a large number of passengers in the car, where the plaintiff was, and on its platform waiting for the empty car, to obtain a seat in it. This was known to the conductor, and they as well as those standing at the depot were at liberty to understand that the call was intended for all who wished to enter it and procure a seat there. • And this state of facts was entitled to consideration on the question of the contributory negligence of the plaintiff so far as related to her movement from the position in which she then was, to get into the other ■car. When she heard this call of the conductor, she was warranted in supposing that the condition was such as to enable her to safely pass into the other car for which she had been waiting to obtain a seat. In proceeding to do so she was not necessarily ■chargeable with negligence. Bucher v. N. Y. C. & H. R. R. R. Co., 98 N. Y., 128. But her duty was to exercise care in going forward. If she saw the gap between the platforms it was negligence for her to proceed, and if she did not see the opening, the question is whether she, as matter of law, was chargeable with the want of care which she was called upon to exercise.

It may be assumed that she did not see the difficulty. She says that she was looking at her brother-in-law, who had called for her to come into the car; and that as she was “ about to take the ■step the car separatedthat was all she remembered. It was just after dusk in the evening. The situation may not have been plainly visible. There had been a crowd of passengers on the car platform. They had gone into the other car and were proceeding to do so, and there were many to get on board at that station. The plaintiff was anxiously hastening apprehensive that •otherwise she might fail to get a seat. It is very likely that she neither apprehended danger from the cause which produced it or looked to see whether the platforms were so united as to permit passage from one to the other. She probably assumed, from what she had heard from the conductor and seen in the movement of the passengers, that the way for passage was as safe as usual when cars are coupled. The plaintiff had on occasions before taken passage on trains running on the time of this one, and had the opportunity of seeing that the platforms of connected cars were not separated by a space at all dangerous to passage. In fact it was about one inch in width when the cars were coupled Mr. Eussell testified that as the plaintiff stepped forward the cars separated and she went down between them. There was other evidence that they separated immediately after the contact. At all events her attention was not called to it, and she says no warning to keep back was heard by her, and her brother and brother-in-law say they heard none. The evidence that warning was given came from the employees whose duty it-was to give it. The severance of the cars after they came together, and the movement of the plaintiff with others to cross into the other car, evidently occupied but a very short space of time. The- plaintiff’s excuse for proceediug as she did was in. the announcement. :‘A11 aboard," which, must now be assumed to have been given by an employee of the-defendant It may be inferred that relying upon that, and seeing others pass, she supposed that it could be done in safety. And the jury were permitted to conclude that the plaintiff relied upon those evidences that the cars were coupled together, and was justified in proceeding as she did to pass from the one into the other car without any apprehension of danger from the cause which produced it. Tousey v. Roberts, 114 N. Y., 312; 23 N. Y. State. Rep., 223; Brassell v. N. Y. C. & H. R. R. R. Co., 84 N. Y , 241.

The test of contributory negligence, or want of due care, is not always found in the failure to exercise the best judgment or to-use the wisest precaution. Some allowance may be made for the influences which ordinarily govern human action, and what would under some circumstances be a want of reasonable care, might not Re such under others. McIntyre v. N. Y. C. R. R. Co., 37 N. Y., 287; Lowery v. Manhattan R. Co., 99 id., 158 ; Sherry v. N. Y. C., etc., R. R. Co., 104 id., 652; 5 N. Y. State Rep., 574.

The question of negligence in the present case was for the jury, and, therefore, the motion to dismiss the complaint was properly denied.

And there was no error in the refusal of the court to charge, as requested, that the plaintiff was bound to wait in the car, where she was in a safe place, until the coupling was complete. The consideration of this proposition is embraced in what has already been said.

The exercise of due care required her to wait until she was induced by what an employee announced, and by it was permitted to suppose and did believe that the cars were so coupled. The court had charged the jury quite fully upon that subject, and the question was submitted to them whether the plaintiff was chargeable, in any respect, with negligence, in proceeding when and as she did, to pass from the car in which she was to the other one, and they were instructed that if the plaintiff was not entirely free from negligencé, she could not recover. The case was a close one, but the facts essential to a recovery by the plaintiff were not without evidence for their support. There seems to have been no error in any of the rulings to which exceptions were taken.

The judgment should be affirmed.

All concur.  