
    Clara I. Truesdell, Respondent, v. Erie Railroad Company, Appellant.
    First Department,
    June 15, 1906.
    Negligence—injury to passenger jumping from car step at station — failure to show negligence.
    The plaintiff was injured by jumping from the step of a car which had stopped at her home station. She had traveled on the defendant’s trains between her home and place of business for some years. At the place where she was compelled to alight there Was no platform, and she charged that the ground between the tracks at this point was rough and filled with holes, but gave no evidence that the injury was received by reason of her foot catching in such hole. She testified to an opinion that the car step was over two feet from the ground, but by actual measurement it was shown to have been only fourteen inches above the rail. No box was placed for the plaintiff to use in alighting, nor was any aid offered her by the conductor, though he stood near the step.
    
      Held, that as the plaintiff had not testified that the injury was caused by the uneven ground rather than by her jump itself, the jury not being authorized to speculate as to the cause of the injury could not find negligence on that issue;
    
      That if the step were of unusual height the plaintiff was not justified in jumping from it;
    That, although it might be negligence for the defendant to furnish a car with a step so high that a passenger could not alight by stepping down, and also in neglecting to use a stepping box or give warning or aid to passengers alighting, yet the weight of evidence shows that the step was not of unusual height;
    That a finding of freedom from contributory negligence was against the weight of evidence, as the plaintiff had plenty of time in which to alight, and could have asked for assistance when she found that the step was too high, or could have passed to the platform of the adjoining car.
    O’Brien, P. J., and Patterson, J., dissented.
    Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of November, 1905, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 10th day of November, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    This is an action by a passenger against a common carrier for personal injuries alleged to have been sustained by her in alighting from one of defendant’s passenger cars at Forest Hill, N. J., owing to defendant’s negligence in omitting to have a proper platform at its said station, upon which passengers might alight, and in omitting to have the landing place properly lighted, and in failing to have a stepping box for the use of passengers, and in failing to have an employee stationed at the landing place to give assistance to the passengers, or warning of the danger in alighting from its trains.
    The plaintiff is an unmarried woman, thirty-two years of age, and at the time of the accident resided at Forest Hill in the city of Newark, N. J. She held a position as stenographer in New York. She had resided at Forest Hill eleven years and during that period she had been accustomed to go back and forth to New York almost daily over defendant’s railroad and ferry. On the 5th day of September, 1902, in company with Addison B. Truesdell, a cousin, she left Jersey City on the defendant’s local train at seven-seventeen in the evening and arrived at Forest Hill station at about seventliirty-eight p. m. The train consisted of a locomotive and four cars, a baggage and combination smoking car next to the engine, then two ordinary day coaches and an extra smoker in the rear. The plaintiff and her companion boarded the third car from the rear platform and took a seat about midway of the car. When the train stopped at Forest Hill for passengers to alight, it was standing on the west-bound main track, which was the most northerly track. The station is on the south side of the tracks. There -was a platform extending along the southerly side of the east-bound track in front of the station and a considerable distance beyond either end, but there was and had been no platform between the tracks or to the north of the west-bound track. During all this period the defendant had been accustomed to discharge passengers from its west-bound trains upon the ground between the two tracks, and with this custom the plaintiff was thoroughly familiar, as she had alighted from cars at that point both in the daytime and in the evening almost daily, except Sundays, during the entire period. When the train stopped, the plaintiff, preceding her companion, passed to the front of the car and out upon the platform and down the steps on the south side, where, according to her evidence, one or more passengers had preceded her in alighting, and, according to the evidence introduced by the defendant, many passengers had preceded her and were assisted by the conductor. She testifies that she saw the conductor standing near the steps from which she was alighting, but a little to her right or toward the front of the train, and opposite the bumpers between the car on which she was riding and the next car, and that he had no lantern. She had a parcel in one hand. After reaching the lower step and standing with both feet upon it, she determined that the step was so high that she would jump, and she did jump, and in doing so she fractured the fibula of her right ankle. This action is brought to recover the damages thus sustained. According to her testimony, which was corroborated by the testimony of other witnesses, the ground between the tracks where passengers were accustomed to alight was covered with broken stone or gravel, level with the ties, but having holes or depressions therein at different places, varying from four inches in depth to a “ mere sag,” caused principally by the exhaust steam from the engine. The testimony introduced by the defendant, however, tended to show that the broken stone was covered with fine stone dust which gave it a hard, smooth surface, filled in on a level with the top of the rails. The plaintiff did not testify that the ground was uneven where her foot landed, or that she stepped in a hole or depression, or slipped. The plaintiff testified that at Jersey City where the platform was level with the rails, she discovered that the step of this car, as she was going upon it, was about two feet high and that it was over two feet where she alighted. According to the testimony of her cousin, the step was two or two and one-half feet high. It does not appear, however, that either the plaintiff or her cousin measured the height of the steps, and it is evident that their testimony is a mere expression of opinion on that point. According to the testimony of the conductor and several other witnesses called by the defendant, who measured the height of this step above the rail, it measured exactly fourteen inches above the rail and was about the ordinary height of steps on passenger cars. According to the testimony of the plaintiff, the space between the tracks where passengers were alighting was not well lighted. There is evidence that it was then between daylight and dark, and there is also evidence that it was quite dark. The plaintiff also testified that no stepping blocks or boxes were in use at that place, and that she had never before jumped from the step of a car. She testified that she was five feet three inches in height, and weighed about 138 pounds, and the reason she assigned for jumping was “ to use the vulgar expression, I could not straddle down that step, it was too high.”
    At the close of the plaintiff’s case the defendant moved for a nonsuit upon the ground that the plaintiff failed to show that she was free from contributory negligence or that her injuries were due to negligence on the part of the defendant, and at the close of all of the evidence moved for a dismissal of the complaint on the same ground. The motions'were denied, and counsel for the defendant excepted. Counsel for the defendant, at the close of the main charge, requested the court to instruct the jury “ that if the plaintiff was injured in consequence of the jump and not because of any depressions in the ground or holes at the place where she says the accident occurred, she cannot recover. If the plaintiff knew the place where she alighted contained depressions or holes, and with this knowledge she jumped, she is guilty of contributory negligence and cannot recover.” The court replied: “ I refuse to charge other than I have charged on that subject,” and counsel for defendant duly excepted.
    
      Winfred T. Denison, for the appellant.
    
      L. E. Warren, for the respondent.
   Laughlin, J.:

The train had reached its regular stopping place at the plaintiff’s destination. There was clearly an invitation for her to alight at that point. ■ She had a right to alight, and was not obliged to allow herself to be carried beyond her home, and it was the duty of the defendant to afford her reasonable safety in alighting by either affording a reasonably safe place and facilities or warning and aiding her in alighting, and it was her duty to exercise the care and caution of a reasonably prudent person with the knowledge that she possessed. (Onderdonk v. N. Y. & S. B. R. Co., 74 Hun, 42; Boyce v. Manhattan R. Co., 118 N. Y. 314; Fox v. Mayor, 5 App. Div. 349; Cartwright v. Chicago & G. T. Ry., 52 Mich. 606; Werner v. Chicago & Northwestern R. Co., 105 Wis. 300; Brodie v. Railway Company, 46 S. C. 203; 24 S. E. Rep. 180; Delaware, L. & W. R. R. Co. v. Perret, 60 N. J. L. 589; Pat. Railway Accident Law, §§ 261-263, and cases cited; 1 S. & R. Neg. [5th ed.] §§ 509, 510.) Even if the jury found that there were holes or depressions in the surface of the broken stone or gravel used as a platform for passengers to alight uporq they were scarcely warranted, on the testimony of the plaintiff, in finding that such holes or depressions had any causal connection with the injuries sustained by the plaintiff. They appear to have resulted from her jumping from the step of the car. If the plaintiff’s foot did not strike upon level surface, or if she slipped on any loose stone or gravel, it would seem that she could have so testified. The jury should not be permitted to speculate and find that, because there may have been holes or depressions at some points, her foot landed in one of them without any' evidence to substantiate it.

The case would, therefore, seem to hinge upon the question as to the height of the step above the surface of the ground between the tracks. If the step were of usual height there would seem to be no justification for the plaintiff’s act in jumping from it on this occasion, when she had been able on all other occasions, both in the daytime and at night, to descend in safety without jumping; and in view of the fact that the conditions had remained the same for many years, and there is no evidence that any passenger ever sustained injuries in alighting upon the gravel or broken stone used as a platform, prior to this time, negligence probably could not be imputed to the defendant. (Lafflin v. Buffalo & Southwestern R. R. Co., 106 N. Y. 136; I. C. R. R. Co. v. Hobbs, 58 Ill. App. 130 ; Delaware, L. & W. R. R. Co. v. Napheys, 90 Penn. St. 135.) If, however, the steps of this car were exceptionally high and more than two feet above the surface of the ground upon which she was required to alight, as indicated by her testimony and that of her cousin, the court, we think, would not be warranted in ruling as matter of law that she was guilty of contributory negligence, or that the defendant was free from negligence. If the railroad company furnished a car with a step so high that a passenger could not conveniently alight by stepping down, the jury would have been warranted in finding that it was guilty of negligence in not furnishing a platform or stepping box, or assisting passengers in alighting or warning them of the danger and assuring them that they would be afforded ample time to alight. Negligence could not be imputed as matter of law to the passenger, who had a right to alight and who determined that she could alight with greater safety by jumping than in attempting to step o'r let her weight down, steadying herself by taking hold of the rail with one hand. We are of opinion, however, that the weight and preponderance of the evidence shows that the step of this car was not of the extraordinary height above the rail testified to by the plaintiff and her cousin. Their testimony at most is an estimate or expression of opinion, and in view of the positive testimony of the witnesses who made the measurements, it was entitled to little weight. It is not probable that the defendant had in use in its regular passenger service a car with steps nearly double the height of those of the ordinary passenger cars. Moreover, the verdict of the jury in finding the plaintiff free from contributory negligence also appears to be against the weight of the evidence. If the step of the car was unusually high the plaintiff was aware of the fact. She could have crossed to the platform of the next car and descended from that, or she could have allowed her escort to pass ahead and assist her, or she could have called upon the conductor, who, according to her evidence, was within speaking distance, to aid her. There is no evidence that it was necessary to hurry. The passengers were not urged to alight quickly. ISTo signal appears to have been given for the train to start, and for aught that appears plaintiff could have had ample time and would have been afforded, had she called upon the conductor, facilities for alighting in "safety when she discovered that the step was too high for her to step to the ground. Other passengers used the step in safety and, so far as appears, without finding it necessary to jump. It is not contemplated that passengers will jump from cars, and when they do and sustain injuries they should show some real necessity for taking that course in alighting.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham and Clarke, JJ., concurred; O’Brien, P. J., and Patterson, J., dissented. .

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.  