
    Marie Fogassi, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Contributory negligence as matter of law— walking on the gangplank of a boat at night without looking down.
    
    Where a passenger on a ferryboat, while landing from the boat at night at a point where there is no • light, joins a crowd, walks with it towards a gangplank, having no guard or rail1 .upon it, which she saw when she started, and while looking forward, instead of looking down at her feet, falls off the gangplank and. is injured, she is guilty of contributory négligence, as matter of law.
    Appeal by the plaintiff, Marie Fógassi, from an order of the Appellate Term of the Supreme Court, entered in the office of- the. clerk of said court on the 25th day of January, 1897, reversing an order of the General Term of the City Court of New York, which affirmed a. judgment of the' City Court of New York, entered in the office, of the cleric of said court on-the. 10th day of June, 1896, upon the verdict of a jury.
    
      Peter Mitchell, for the appellant.
    
      Herbert K.Kinney and Ashbel Green, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages alleged to have been sustained by the plaintiff through the negligence of the defendant.

. On the 21st of July, 1893, about nine o’clock at night,, the plaintiff and her husband were passengers on the defendant’s ferryboat Kingston, coming from New Jersey to New York. The ferryboat was of the usual pattern, rounded to fit a corresponding curve in the bridge at which the boat landed. The boat upon this occasion was not .brought, up close to the bridge, but there was an opening between the boat and the bridge. Across this opening a gangplank without guards or rails was thrown, and upon this the passengers passed.

The plaintiff was standing on the forward part of the boat at the time of landing and she heard them put the plank there. The plaintiff’s husband went ashore, but she waited about half way between the bow of the boat and the cabin until the crowd thinned out. She then saw the plank and started and joined the crowd, and walking on without looking down, because of the crowd, as she says, she stepped off the plank and fell into the river. The plaintiff further testified that there was no light where she stood. Upon the trial the jury rendered a verdict for the. plaintiff; the judgment thereupon entered was affirmed by the General Term of the City Court, and upon appeal to the Appellate Term this judgment was reversed and from the order of reversal this appeal is taken.

It seems to ns, as held by the Appellate Term, that the plaintiff was guilty of contributory negligence. Passengers upon public conveyances are bound to take some care of themselves, and where there is a manifest danger, they are required to use reasonable care to avoid it. In the case .at bar the plaintiff heard the plank put out, when she started to leave the boat she saw. it, and then of her own free will joined a crowd in passing over the plank, which crowd, she says, prevented her from' seeing it. After she joined the crowd she did not attempt to look for the plank or pay any attention to it, but followed the crowd, looking for her husband who had gone off the boat ahead of her. It is manifest that if she had avoided the crowd which she voluntarily joined and looked for the plank she could have seen it. She saw it when half way between the entrance to the cabin and the end of the boat, and when she started to join the crowd. Knowing thus the situation, it was the plain duty of the plaintiff to have used some care in keeping upon the plank, and not to go forward heedlessly and without paying the slightest attention to her stéps. As but one inference can be, drawn from the facts proven upon the trial,, the question .of contributory, negligence was one for the court, and should not have "been submitted to the. jury.

The order appealed from should be affirmed, with costs to the 'respondent to abide the event, of the new trial.

Rumset, Williams and Patterson, JJ., concurred.

Order affirmed, with costs to the respondent to abide the event of the new trial.  