
    Victor Bartle, Plaintiff, v. New York Central and Hudson River Railroad Company, Defendant.
    Fourth Department,
    July 9, 1907.
    Negligence — injury by stepping from moving train in dark — . contributory negligence. ■
    It is not necessary for a railroad to provide a trainman at each end of a car to ■ call out stations and assist passengers-to" alight,- '
    When a station is called out. by the trainman, who has a lantern at one end of . the.car, a passenger who goes to the other platform where there is no light and - in, the .dark' steps off while the-car is still in motion, is guilty of Contributory negligence, and cannot recover for injuries received. .
    Alighting-from a moving train is presumptively a "negligent act. .
    Kruse and Robson, JJ,, dissented.
    ■ Motion by the defendant, the New York Central and Hudson Biver Bailroad Company, for a new trial upon a case containing ■ ■ exceptions, ordered to be -heard at the Appellate'Division in the first.instance- upon the dismissal, of the complaint by direction-of ■ the court at the - close of the plaintiff’s' case' upon a trial at the Monroe Trial Term..' .'
    
      James M. E. O’Grady, for the plaintiff.
    
      Edward Harris, Jr., for the defendant.
   Williams, J.:

. The exceptions should be overruled, and the motion denied, with costs’to-defendant, ■

The action was brought to recover damages for personal in j nries alleged, to have resulted from defendant’s negligence." The accident occurred and the injuries were received by plaintiff in alighting from a. train of defendant in the night time., Plaintiff stepped off the car. steps while the train was still in. motion.. ’ He claimed that he supposed the train had stopped. He was at the front of the car next the engine. The trainman who called out the station was at the rear end of the car.’ • The plaintiff went off the front end of the car. There was mothirig prejudicial to the defendant in the remark of the conductor when he took up the tickets of the plaintiff’s party. It was late at night. The people had'been away upon an excursion, and the. conductor may well have assumed they were tired and wére likely to fall asleep. There were twelve of them to get off. The remark of the conductor was very natural and proper, “Don’t be asleep when you get there.” The.objection' that the station was not-well lighted ivas hardly tenable. It was a small station, and it is not usual to have such stations lighted. The more serious objection would be that there was no light at the point where passengers were to alight,- to enable them to see the steps and the landing place and to know that the train had stopped. It was not necessary that the defendant should, pro vide a trainman, at each end of a car. The trainman on this occasion was. at the rear end of the car and had. his lantern there. . The plaintiff -and his company knew where the trainman was, heard him call out this station, and yet they saw fit to leave the car at the front end where it was dark and there was no trainman and no light. The train was being- operated properly when the accident occurred,- Avas running smoothly. There Avas no jerking of the car, no throwing of the plaintiff off the step. While the car was stilt moving so smoothly and quietly along that the plaintiff supposed it had stopped, the plaintiff stepped off and was thrown down and injured. There, seems to have been very little evidence of negligence of the defendant upon which to base a verdict for plaintiff. The evidence as to contributory negligence by the plaintiff, liOAvever, was sufficient to warrant the nonsuit that was granted in the case. The alighting from a train Avliile in motion is presumptively and generally a negligent act. (Solomon v. Manhattan R. Co., 103 N. Y. 437; Mearns v. Central R. R. Co. of N. J., 163 id. 108.)

In the Solomon case the court- said: “ It is, we think,- the general rule of 1'aAv, established by the decisions in this and other States * * * that -the boarding, or alighting from, a moving train is presumably and generally a negligent. act per se, and that in order to rebut this presumption and justify a recovery for an injury sustained in getting on or off a moving train, it must appear that the passenger Avas, by the act of the defendant, put to an election betAveen alternative dangers, or, that something was done or said, or that some direction AAas given to the passenger by those in charge of the train, or some situation created, which interfered to some extent with his free agency, and was calculated to divert Ms attention from the danger and create a confidence that the attempt.could be made in safety.”

This passage was quoted in the Mearns case with approval and reliéd upon in the decision of that case. But it is said here that the plaintiff did not know the train was still moving. He believed it to have stopped when he stepped off. This evidence is hardly credible in view of the care he claims to have exercised to discover whether it had stopped or not. The same .condition was claimed to exist in the Mearns case, that he actgd deliberately in leaving the train and stepped of? the cár in the belief that it had stopped. Upon this subject the court said: Ordinarily, passengers have no difficulty in determining' whether a train has stopped. They are usually as sensitive to a moving car as any guard or conductor could be, and heretofore it has never been understood to-be the duty of a railroad company to expressly warn its passengers of the starting'or of the stopping , of the train. * * * If such a duty is now imposed upon railroad companies, their burden will be materially increased'and they cannot properly open the door of a car for the exit of passengers until it has actually come to a stop.” No recovery was permitted in that casé. The Appelate Division had held both the question of defendant’s negligence and the plaintiff’s contributory negligence were for the'jury. (23 App. Div. 298.) The Court of Appeals said this was"error. .We think this case was controlled by the Mearns case and that the nonsuit was properly granted.

All concurred, except .Kruse and Bobson, JJ., who dissented.

Plaintiff’s exceptions overruled and motion for new trial denied, with costs, and judgment ordered for the defendant on the nonsuit,  