
    (76 Hun, 44.)
    PIPER v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Second Department.
    February 12, 1894.)
    Carriers—Injury to Passenger—Contributory Negligence.
    A passenger in a sleeping car went into the dressing room at night, and, while looking for the water-closet, the dressing room not being lighted, opened the rear door of the car, and fell out 'Held, that he was not, as a matter of law, negligent in not calling the porter and waiting for a light.
    Appeal from circuit court, Kings county.
    Action by Elwin S. Piper against the New York Central & Hudson River Railroad Company to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. From a judgment entered on a verdict directed in favor of defendant, plaintiff appealá. Reversed.
    Argued before DYKMAN, PRATT, and "CULLEN, JJ.
    Jackson & Burr, (Jas. A. Burr, Jr., of counsel,) for appellant.
    Saunders, Webb & Worcester, (Thorndike Saunders and Edwin D. Worcester, Jr., of counsel,) for respondent.
   CULLEN, J.

This is an appeal from a judgment for the defendant upon a verdict at circuit, directed by the court. The plaintiff, on an evening in January, took a sleeping car at Albany, bound for New York, where the train was to arrive at 6:30 in the morning. His testimony was to the effect that on the approach of the train to the city, about 6 o’clock, he was awakened by the porter p-that, partially dressed, he started for the washroom, which he found wholly dark; that, to comply with a call of nature, he felt for the water-closet, the location of which he knew, having been there the night before; that he grasped for the knob, and found one which he supposed to be that of the closet, but which proved to have been that of the rear door of the car, which had been left open; and that he was immediately precipitated through it from the train upon the ground, and was seriously injured. That the plaintiff fell from the car was not disputed; but the absence of light, and that the door was open, were disputed. There was no such conclusiveness of the evidence in favor of the defendant as. justified a direction in its favor on the disputed questions of fact. It is therefore to be determined whether, in the most favorable aspect of the evidence, the plaintiff failed, as a matter of law, to show any liability on the part of the defendant. The plaintiff, being a passenger on the sleeping car, had the right to expect those conveniences which are furnished by such cars, and for which he had paid. Carpenter v. Railroad Co., 124 N. Y. 58, 26 N. E. 277. It is a matter of common knowledge that on such cars passengers are expected to use the conveniences of the car during the night, and also are awakened in time that they may both dress and make their toilets before arriving at their destination. When the plaintiff reached the toilet room he found it dark. He had a call of nature, which it was reasonable for him to discharge, provided he did not place himself in danger. Wé think that it cannot be said as a matter of law that the plaintiff, upon discovering the darkness of the toilet room, should have returned to the body of the car, found the porter, and waited until the room was lighted. The question of contributory negligence, therefore, was for the jury. The defendant’s negligence was also for the jury. We think no negligence can be predicated on the character of the car itself. But the absence of light might be found to be negligence, for the duty of the defendant was not only to light the lamps, but also to use reasonable diligence to maintain the light in the toilet room. Negligence possibly might also be predicated from the door being left open. The rules of the company provided that it should be kept closed between the stations. As this was the last car. of the train, it was not necessary to open the door for communication between different cars. It is not entirely clear how this door was required by the rules to be fastened, and it may appear on another trial that it might have been opened by a passenger for any purpose, such as air, or to go out on the platform. But we think, in any aspect of the case, the question of negligence, based on the absence of light, should have been submitted to the jury. The judgment should be reversed, and a new trial ordered, costs to abide event.  