
    Catherine English, as Administratrix, etc., of Edward English, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    December 6, 1912.
    Railroad — negligence—injury to intoxicated person while attempting to board moving train—facts not showing negligence of defendant subsequent to contributory negligence of plaintiff.
    The rule that there may be a recovery in a negligence action notwithstanding the contributory negligence of the person injured if the defendant after such contributory negligence could have avoided the accident by exercising ordinary care is based .upon the theory that the subsequent omission of duty is the sole, direct and proximate cause of the injury. Said rule does not apply where the plaintiff’s intestate, having been grossly intoxicated at the defendant’s railroad station early in the evening and having partially recovered later in the evening, was killed while attempting to board a moving train, for it was the negligence of the intestate in attempting to board the train which was the direct, proximate cause of his death. There was nothing which the defendant could have done after such contributory negligence which would have avoided the accident.
    The failure of the defendant railroad to refuse the intestate access to the station or to assign an employee to watch him while intoxicated did not, under the circumstances, constitute negligence.
    Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 19th day of October, 1911, upon the verdict of a jury for. $10,625, and also from an order entered in said clerk’s office on the 25th day of October, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. Brennan, for the appellant.
    
      Michael J. Tierney, for the respondent.
   Hirschberg, J.:

The appeal is from a judgment and order based on a verdict awarding the plaintiff damages for the death of her intestate, Edward English. It appears that he was injured at about forty-seven minutes after ten o’clock on the evening of July 3, 1907, while trying to board a moving train leaving defendant’s station at Tarrytown, N. Y., and that he died a few hours afterwards from the injuries. Between five and six o’clock in the evening, English, accompanied by his daughter, a child five years of age, and his stepdaughter, fifteen years of age, visited the defendant’s station at Tarrytown and purchased a ticket for himself to Newburgh, N. Y., and a half-ticket for his stepdaughter to Fishkill, N. Y., it being his intention to pay her fare between Fishkill and Newburgh to the ferry company. At that túne English was sober. Soon after purchasing the tickets he began a series of visits to various saloons in the vicinity of the station, leaving the children at the station. After his return from the third visit he was quite intoxicated, being barely able to walk. By the time his train arrived, about twenty-five minutes after seven, he had fallen asleep upon the station platform. The two girls left him asleep, going on the train to their destination in charge of one of the passengers. It does not appear how long he remained asleep on the station platform. At half-past nine, however, the police officer on duty at the station saw him come out of one of the saloons in the vicinity of the station, cross the street to the side the. station is on, walk along that street to a fruit store, enter the same and in a brief time return from the store to the station. The witness testified as follows: “He was not so intoxicated that I felt called upon to make any arrest, not at that time. He was able to get along himself. He walked straight across to the station. He walked straight down to the fruit store. He went on his business and back to the station, and I did not see him again until after the accident.”

It does not appear where English passed the time intervening the time that witness last saw him and the time of the accident. At forty-seven minutes after ten, as a north-bound passenger train was leaving Tarrytown, having made its stop, some one shouted “All aboard,” and English ran from the station platform, apparently further north than the place of the waiting-room door and about opposite the door of the station baggage room. He grabbed for the handles of one of the doors inclosing a car platform, and missed it, falling alongside the car and rolling on the ground until he passed under the rear truck of the last car, receiving the injuries that resulted in his death.

It is conceded that his attempt to hoard the moving' train constituted negligence, but the learned counsel for the respondent seeks to sustain the recovery on the ground that the facts authorized the jury to apply the principle of Davies v. Mann (10 M. & W. 546), to the effect that there may be a recovery notwithstanding the negligence of the injured party, if the defendant after the occurrence of such' negligence could have avoided its result by the exercise of ordinary care. (See Weitzman v. Nassau Electric R. R. Co., 33 App. Div. 585, 591, and Button v. Hudson River R. R. Co., 18 N. Y. 248.) The rule established in Davies v. Mann {supra), and since frequently followed in this and other jurisdictions, assumes as its basis the omission after the negligence to perform some duty which, if performed, would have avoided the result of the negligence. In such cases the subsequent omission is deemed the sole, direct and proximate cause of the injury. There are no facts in the case at bar warranting the jury in finding the subsequent neglect of any duty by the defendant resulting in the death of plaintiff’s intestate.' Whether the station platform was a dangerous place for the defendant’s employees to permit English to sleep so that the defendant would have been liable had he been, injured by rolling under a moving train or otherwise is not material here. Nor is it necessary to determine whether his condition was such before his return to the station at half-past nine that the defendant’s employees should have had him arrested. The undisputed evidence shows that at nine-thirty he was apparently better able to care for himself than he had been earlier in the evening, and that the village policeman did not deem it necessary to place him under arrest. The defendant is not chargeable under these circumstances. with knowledge that he would subsequently attempt to board a moving train. His negligence in attempting to board a moving train was the direct proximate cause of his death, and there was nothing that the defendant’s employees could have done after the occurrence of that negligence whereby its fatal result would have been avoided. The judgment appealed from can be sustained only on the theory that the defendant was under the duty of refusing him access to its station or of assigning one of its employees to attend and watch him while at the station. There is nothing in the record regarding the intestate’s condition between the time of his return to the station at half-past nine and the happening of the accident, more than.an hour later, that necessarily imposed such duty upon the defendant.

None of the'cases cited by the learned counsel for the respondent presents facts analogous to those in the case at bar. In Black v. N. Y., N. H. & H. R. R. Co. (193 Mass. 448) the railroad employees took the plaintiff, an intoxicated passenger, from a place of comparative safety and left him in a place of danger, where he was almost immediately injured.

In Gill v. Rochester & Pittsburgh R. R. Co. (37 Hun, 107) and in Donovan v. Greenfield & T. F. St. Ry. Co. (183 Fed. Rep. 526) there was sufficient evidence to warrant the jury in finding that the decedent had been ejected from the defendant’s car at a dangerous place, while in a helpless condition. In the former case the court stated that no voluntary or conscious act of the decedent could have intervened the ejectment and his death.

In Cincinnati, Indianapolis, St. L. & C. R. R. Co. v. Cooper (120 Ind. 469; 6 L. R. A. 241) the defendant’s employees knowingly left the intestate helpless upon the railroad track, where he was subsequently killed by one of the defendant’s teams.

In Wells v. N. Y. C. & H. R. R. R. Co. (25 App. Div. 365) the decedent, one of defendant’s passengers, was wrongfully ejected from the defendant’s station when mentally irresponsible from illness apparently due to epilepsy, and was permitted to wander upon the tracks in the vicinity of the station, where he was killed by one of the defendant’s trains in a manner not disclosed in detail by the opinion or report. The record in the case at bar does not show any such helpless condition of plaintiff’s decedent upon his return to the defendant’s station more than an hour prior to the accident.

. The judgment and order should be reversed and a new trial granted.

Thomas, Oarr, Woodward and Eich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  