
    Marie Fogassi, Respondent, v. The New York Central & Hudson River Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    January, 1897.)
    I. Negligence — Contributory — Leaving ferry boat.
    One who proceeds to leave a ferry boat without looking to see he steps or at a time when he cannot see because the. view is obstructed by the shadows of other passengers takes the risk of whatever may occur.
    
      2. Same.
    Plaintiff, after waiting to allow the greater part of the crowd of passengers to leave a ferry boat, attempted to follow them, keeping to the left of the remainder, when she fell into an opening between the boat and the dock which her husband had previously seen and avoided. She testified that she was not looking where she was going, and could not have seen had she done so, because of insufficiency of light. Held, that, in proceeding to leave the boat without looking where she was going, plaintiff was guilty of contributory negligence which precluded a recovery.
    Appeal by the defendant from an affirmance by the General Term of the City Court of a judgment in plaintiff’s favor, entered upon a verdict for $2,000 damages. The action was to recover for personal injuries and loss of property, 'sustained by the plaintiff in falling from the ferry boat Kingston, into the Hudson river at the Franklin street ferry landing of the West Shore railroad in New York city, on the evening of July 21, 1893.
    Ashbel Green and Herbert E. Kinney, for appellant.
    Peter Mitchell and Campora & Eeville, for respondent.
   Halt, P' J.

The plaintiff, with her husband and daughter, were passengers on the West Shore railroad, operated by the defendant, and were transported across the Hudson .river in á ferry boat, landing at the foot of Franklin street, about, nine o’clock at night. The passengers had to leave the boat by means of a plank laid, from the boat to the dock, across a gap or opening about two feet in width, between the boat and the dock or bridge. Into this opening the plaintiff fell, and the question is whether such fall was due in any degree to her neglect of ordinary precautions while attempting to leave the boat.’ Upon the previous appeal to the General Term of the Common Pleas upon a similar verdict in her favor, it was held that she not only failed to establish the absence of contributory negligence on her part, but, by the testimony adduced in her behalf, substantially proved it; because she testified that she followed the crowd with her eyes upon her husband, who preceded her, and did not look down at the floor of the boat and that it was , too dark for her to see, had she. so looked; that according to the testimony of her husband he’ saw the hole in question, avoided it and turned to call her attention to it, but was unable to reach her before the accident occurred; and the court held that, had she actually followed her husband and the crowd,' she would not have suffered the" injury which they escaped; or, had she taken' the reasonable precaution of observing, the floor upon which she was proceeding, as her husband did, she, as well as he, must have seen the hole which the light in the locality sufficed to disclose to his view; and" so the judgment in her" favor was reversed and a new " trial ordered. Fogassi v. N. Y. C. & H. R. R. R. Co., 13 Misc. Rep. 102.

‘Upon the new trial the case for the plaintiff was not substantially altered. "While there was a dispute as to whether the "lights furnished by the defendant were sufficient to make the "danger visible, yet, if the. plaintiff’s contention be true that the "light was insufficient and the place was dark, a hardly plausible contention in view of her husband’s testimony that he saw "the opening and turned to warn her of it, there still remains the question as to whether she exercised care proportionate to "the circumstances of the case. Upon the question as to whether she looked down, or not, when leaving the boat, there is a discrepancy between her testimony on this and the former trial; but I do not regard this difference as very material, since the plaintiff was unfamiliar with the English language and may have misapprehended the point of the questions addressed to her.

The plaintiff’s want of care is established by her own testimony. Conceding that she tried "to see when she was stepping on the plank, but could not because of the crowd and the insufficient light, it is substantially shown that the light, if insufficient at that point or at that moment, was so' by reason of the shadows and of the obstruction caused by other passengers passing off at the same ' time. Such obstruction and the darkness it caused must manifestly have been but temporary and a prudent person would have halted an instant, if she found that' her next step would be in the dark. There was no pretense that she was in a crowd too dense and pushing for her to extricate herself and that she was compelled to pass on blindly, as is often the case in going to and from public conveyances, and as was the case in Fox v. Mayor, 5 App. Div. 349, where a passenger was injured in alighting from a Brooklyn bridge car and where the court said: “ Cars are run closely and emptied quickly. One moving out with the crowd is obliged to some extent" to keep step with it.” . -

In this case it is not claimed that the plaintiff was so circumstanced, and it affirmatively appears from her own testimony that she could choose her time for landing. “ I. let the crowd go till it got clear, and when I saw'the crowd was getting kind of light, I started myself.” It thus appears that plaintiff wás under no necessity or compulsion to proceed before she could assure herself of the Safety of the passage, and her next testimony indicates clearly that the accident was the result of her neglect of any precaution at that moment. She testifies: ■ “.And I got near the crowd and I looked up after that.” In effect, as she approached the landing, she did not attempt to see where she was going, but looked up.

She afterward testified that just before she fell she was looking for her husband; that she could not look down all the time; that she did look, but could see nothing for the crowd; that before she fell it was too dark; that she wás looking down but could see nothing. The attempt was thus made to show that the plaintiff, in following the crowd, was prevented from seeing where she went and so fell into the hole in question; but this theory was completely disproved by the fact that no other passenger fell and that, if she had actually followed the crowd, she would have gone upon the plank and would have reached the dock in safety. Her testimony, on the first trial, as to the position of the crowd, was that the people who were getting off ahead of her were at her side and to her right. On this trial she substantially testified to the same thing, but also stated that there were lots of people in front of her. But the accident unquestionably occurred by her attempting to land by walking to the left of the crowd and of the plank; that the hole or gap into which she stepped was not perceived because she was not looking, or was not perceived because the crowd prevented her seeing. If fhe former, her negligence was manifest and, if the latter, then it was imprudent for her to attempt to take a step in the dark. - In this respect the case is like Heaney v. L. I. R. R. Co., 112 N. Y. 122, where the view was obscured by flitting clouds of smoke of a railway train." The court held that it was the duty of the wayfarer to await the 'disappearance of the smoke until he was reasonably sure that he had a clear crossing. It was the duty ■of the plaintiff in this case to wait until her view of the place in which she was about to step was unobstructed by the shadows cast by the moving crowd.

That every person stepping upon or off a ferry boat in the night time is in a position of such risk as to call for the precaution át least -of observing where he steps, is a proposition that requires no sup- ■ port by argument or authorities. In this case the plaintiff .went on without looking, or if she did look, could not see because the view was obstructed by the shadow cast by the- crowd of moving pas-sengers, and in proceeding under such circumstances she took the' risk of whatever might occur, " . ' ' • ' " '

We cannot see that the plaintiff’s case was bettered by the évi- K (fence upon the" new trial, ,and the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

MóAdam and Bisóhobb, JJ., concur.

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