
    Karl Wehn, Appellant, v. Interborough Rapid Transit Company, Respondent.
    First Department,
    June 18, 1909.
    Railroad—negligence—injury to passenger attempting to hoard elevated train—erroneous charge.
    Where a plaintiff who was injured while attempting to hoard a train on an elevated railroad has given evidence that the gate was open when he attempted to board the train, that he was actually upon the platform and was pushed therefrom by the guard, it is error.for the court to Charge that if the jury is unable to determine whether the gate was closed or not when the plaintiff attempted to board the train, the verdict must be for the defendant, and that if the conductor was closing the gate and the same was not wholly closed, it was notice to the plaintiff that no more passengers could board the train, and that if he still persisted in trying to do so, he assumed the risk.
    This, because section 419 of the Penal Code makes it a misdemeanor for an employee of an elevated railroad to start the train before every passenger on the platform manifesting a desire to enter has boarded the train, and sections 138 and 139 of the Railroad Law containing analogous provisions also provide that trains on elevated railroads shall not start until the gates or doors are firmly closed; and hence the jury was instructed that even though the defendant violated said statutes the plaintiff could not recover if the conductor had commenced to close the gates, irrespective of where the plaintiff was, how far the gates were closed; or whether the starting bell had rung.
    Appeal by the plaintiff, Karl Wehn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew-York on the 1st day of July, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of September, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      
      Delevan A. Holmes of counsel [Charles P. Rogers with him on the brief], Holmes & Rogers, attorneys, for the appellant.
    
      Joseph H. Adams of counsel [ James L. Quackenbush, attorney], for the respondent.
   Clarke, J.:

The station of the defendant’s road at Third avenue and One Hundred and Sixty-first street, in the borough of the Bronx, is what is called an island station, that is, the platform occupies the : space between the north and south-bound tracks. The entrance to the station is at .the ..south end. The ticket window is near said entrance. The waiting room extends thirty-two feet to the north, from which the platform is reached by passing through two swinging dóors. As the plaintiff and his companion, after they had obtained their tickets, were going through the-station, they observed that a south-bound train had pulled up at the station. The structure of the station house occupied the full width' of the platform. This train had stopped so that the rear platform of its first car wbs even with the station house, so that the gate upon that platform was not opened. The gate on the. front platform of the second car was opened for the egress and. entrance of passengers. The plaintiff, following his companion, hastened through the left side of the swinging doors at the entrance and, turning sharply, attempted to board the train upon this first platform of the second car in close proximity to the north wall of the station building. The train started and the two men were thrown and dragged between the side of the building and the train, plaintiff’s companion being killed arid plaintiff receiving the injuries complained of.

The plaintiff’s claim is that the gate when they attempted to board the train was open, and that as they boarded it the train was started, they were pushed, from the platform' by the guard and the gate slammed. i The defendant’s claim - is that the gate was closed before the signal to start was given, and that these men rushed: out Of the waiting room and attempted to board the train after it had started and with the gate shut.

Upon conflicting evidence, the jury brought in a verdict in favor of the defendant. The plaintiff appeals from the order denying-his motion for a new trial .upon the ground that said verdict is against the weight of evidence. We have carefully examined this record and áre of the opinion that it presented such a question of fact as could be resolved only by a jury, and that with the deter mination of that jury upon the facts this court ought not to interfere.

The record discloses, however, an error fatal to_the maintenance of this judgment. Section 419 of the Penal Code provides that “ Any conductor, brakeman, or other agent or employe of an elevated railroad, who : 1. Starts any train or car of such railroad, or gives any signal or order to any engineer or other person to start any such train or car * * * before every passenger on the platform or station at which the train has stopped, who manifests a desire to enter the train, has actually boarded or entered the same, unless due notice is given by an authorized employe of such railroad that the train is full and that no more passengers can then be received ; or, 2. Obstructs the lawful ingress or egress of a passenger to or from any such car; or, 3. Opens a platform gate of any such car while the train is in motion, or starts such train before such gate is firmly closed; is guilty of a misdemeanor.” And section 138 of the Railroad Law (Laws of 1890, chap. 565) provides as follows : “All trains upon elevated railroads shall come to a full stop before any passenger shall be permitted to leave such trains; and no train on such railroad shall be permitted to start * until eveiy passenger upon the platform or station at which such train has stopped, and desiring to board or enter such cars, shall have actually boarded or entered the same, but no person shall be permitted to enter or board any train after due notice from an authorized employee of such corporation that such train is full-and that no more passengers can be then received.” Section 139 (as amd. by Laws of 1903, chap. 273) provides for gates or "vestibule doors on the outer edge of the platforms of the passenger cars on elevated, railroads; “ and every such gate or door shall be kept closed while the car is in motion; and when the car has stopped, and a gate or door has been opened, the' car shall not start until such gate or door is again firmly closed.”

Bearing in mind those positive provisions of law, and that the question in the case was whether the train had started before or after the closing of the gate, and that the plaintiff and his witnesses had sworn that the gate was open when he and his companion attempted to board the train, and that they had actually gotten upon the platform, and were pushed therefrom by the guard, the learned court, at the close of the case, at the request of the defend- . ant’s counsel, charged the jury as follows: “If, upon'all the evidence, the jury are unable to determine whether the gate was; closed or not when the plaintiff attempted to board the train, then the jury must render a verdict for the defendant, no matter what they may think about the cause of the plaintiff’s injury,” which was followed by this: [Counsel for defendant}: If the conductor was closing the gate,'and the same was-not wholly closed, it was sufficient notice to the plaintiff that no .more passengers would be allowed to board the train, dnd he is presumed to have known it, and if he still persisted in trying to board said train, he thereby assumed all the risks and hazards connected with and arising from such act, and.in taking that risk he waived the benefits intended by the statutes, and as to him its provisions are not to be construed, and the plaintiff cannot recover. The Court: I will charge that.”

That instruction took from the jury every question of negligence of the defendant, provided only they should find that the conductor was closing the gate, and directed them that, notwithstanding the fact that they might find that the plaintiff had got upon the car platform, and was pushed therefrom by the conductor shoving against the breast of his companion, as was testified by one of the witnesses, and notwithstanding the positive provision of. the-statute that the train should not start until the gate was closed, yet, nevertheless, they must find that the plaintiff could not recover. In other words, if they should find one only of the facts in dispute, that the conductor had commenced to close the gate, irrespective of how far it was closed, or whether the bell had been rung to start before the gate was closed, or where the plaintiff was, a verdict was directed for the defendant. That instruction was error, and requires a reversal of the judgment.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, McLaughlin, Laughlin and Scott, JJ.,-concurred.

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