
    Lizzie Clune, App’lt, v. Brooklyn Elevated Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    Negligence—Circumstances excusing the performance of a duty.
    A train of cars upon the defendant’s railroad on which the plaintiff was a passenger, while not in motion, lay with platform of each car touching that of the one next to it. While they were in that condition the plaintiff attempted to go from one car to another, and as' she tried to step from one platform to the next, the train started pulling the cars apart so that she fell into the space between the platforms. The conductor stationed between the ears was aware that this change of condition would occur upon the train being set in motion. Held, that it was his duty to warn the plaintiff of that danger, but that if he were prevented from so doing, by the demands of imperative duty, his failure to warn the plaintiff, did not constitute negligence.
    Appeal from judgment entered upon a verdict rendered at a circuit, in Kings county, and from order denying motion made for a new trial on the minutes.
    
      
      J. F. Bullwinkel, for app’It; Lauterbach & Spingarn, for resp’t.
   Pratt, J.

—A reversal of the judgment is claimed chiefly on the ground that error was committed by refusal to charge that the conductor of the train, who was on the platform where the plaintiff fell, owed her a duty to warn her of the danger, if he knew it, of stepping from the platform to the platform of the car where she intended to go.

It appears from the evidence that when the. cars are at rest, they are substantially in contact, but that when in motion they are separated by a distance of some inches. One not aware of the change in the situation resulting from putting the cars in motion, might not unnaturally step into the vacant place thus produced.

Although it appears that plaintiff had before ridden upon the elevated cars, it does not follow that she must be aware of the danger of crossingfrom car to car, due to the vacant place thus caused.

The conductor must be presumed to know such danger, and if he heard the proposal for plaintiff to cross, the question is raised whether he did not owe a duty to the plaintiff to warn her of the danger. We think he did, but this must not be considered as exclusive of his other duties. He owed a duty to the train, like closing the gates and giving the signal to start, and general superintendence of affairs at that part of the train, and it was not his duty to neglect everything else in order to escort a passenger from one platform to another.

Now his whole conduct was fairly submitted to the jury. The court ruled that defendant was bound to use due care to protect from risk of falling through where plaintiff fell any person who should come on the cars. This included every reasonable effort on the part of defendants’ servants to prevent injury to passengers by falling between the cars. There was no evidence that the conductor knew the plaintiff was about to cross the opening between the cars. It is true he heard some one say, ‘' Take the next car,” but he was very busy in his imperative duties at the time, and as soon as he could turn around he heard the scream and the plaintiff was down between the cars. It was, therefore, proper for the court to refuse to charge upon the evidence that it was the duty of the conductor to notify the plaintiff of danger, as these circumstances were not evidence that the conductor knew an attempt was about being made to cross the opening.

The charge, as a whole, gave the jury the correct rule of law on the facts as they appeared in evidence, and the judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  