
    Stephen Mearns, Appellant, v. The Central Railroad of New Jersey, Respondent.
    
      Negligence—inviting a passenger to descend, in the dark, from a moving train.
    
    In an action brought to recover damages for personal injuries resulting to the-plaintiff because of the alleged negligence of the defendant, a railroad company, it appeared that as one of - the defendant’s trains upon which the plaintiff was a passenger, w;as drawing into the station at Jersey City, the con ductor called out, “All out; Jersey City; last stop," and that after the conductor had thrown open the vestibule door, the plaintiff, in full view of the-conductor, descended the steps of the car, which was still in motion, although the plaintiff was unaware of that fact, the movement of the train being- perfectly smooth, and it being dark at the time, the only light being that at the-top of the car steps, and that, as he reached the ground, he was thrown down and run over.
    
      Held, that it was error to nonsuit the plaintiff, as upon the evidence the questions, whether the conductor should have informed the plaintiff that the train was-moving, and whether the plaintiff was guilty of contributory negligence should have been submitted to the jury.
    
      
      ■ Appeal by the plaintiff, Stephen Mearns, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ñew York on the 25th day of June, 1897, upon the dismissal of the complaint directed by the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 19th day of July, 1897, denying the plaintiff’s motion to set aside the dismissal of the complaint and for a new trial.
    The action was brought to recover damages for personal injuries resulting to the plaintiff because of the alleged negligence of the defendant.
    
      Thomas P. Wickes, for the appellant.
    
      Robert Thorne, for the respondent.
   Barrett, J.:

The plaintiff was a passenger on the defendant’s railroad. The train on which he was traveling was known as the Royal Blue Line. It was vestibuled throughout. The plaintiff took this train at Washington at noon on the 20th day of December, 1891, and he reached Jersey City about six o’clock on the same evening. As the train was drawing into, the station at Jersey City the conductor called out: “All out; Jersey City; last stop.” The plaintiff then took his umbrella and bag and prepared to alight. He walked toward the front of the car and waited, leaning against the adjoining partition, for the conductor to open the vestibule door. The conductor then reached to a bar which was across this door and lifted it out. He thereupon pulled the door inward, thus opening it. The plaintiff thereupon, stepped across the partition and started to go down the steps of the car. He testified that at this moment the conductor was. “ two-thirds ” facing him. It was dark outside. There was a light, however, at the top of the steps of the car, which cast its rays upon these steps and upon the narrow exterior space; As the plaintiff descended the steps he kept hold of the rail with his right hand and held his umbrella and bag with the other. The train was still in motion, but the plaintiff was not aware of this fact. It appears that the movement of the train was perfectly smooth. The respondent concedes that there was no jar or jerking motion of . any kind. The plaintiff looked ahead as he stepped through the vestibule door and saw the steps, but that was all. As he took the first step he saw the ground, but could see nothing else. He then attempted to step on the station platform. At this point he was, as he says, thrown down and run over, suffering thereby severe injuries. The conductor gave him no warning or intimation that the car had not yet stopped. Upon substantially these facts the trial court dismissed the complaint. We think this was error.

The conductor knew, or should have known, that the car was in motion at the time he invited the plaintiff to alight. There was evidence that the conductor was facing the plaintiff, and saw that the latter was acting upon his invitation. If it was dangerous for the plaintiff to do what he was thus invited to do, it was the conductor’s clear duty to check him, or, at least, inform him of the danger. The jury might well have found, upon the evidence, that the conductor neglected this duty. At all events the question was . for them..

So as to the plaintiff’s freedom from contributory negligence. There was no question of his getting off a car which he knew to be in motion. The real question was, whether he should have known that it was. in motion. Upon the evidence, that question also was for the jury. The plaintiff certainly had a right to assume that, when the conductor said “All out,” the train was about to come to a full stop. The respondent says that this call of the conductor was simply a preparatory notice. Admitting this to be so, the plaintiff only acted upon it as such. He did not immediately attempt to leave the car, nor, in fact, could he have done so, as the vestibule door was fastened. He simply prepared for his exit, and this preparation was quite leisurely. When, however, the conductor followed this preparatory notice up by opening the vestibule doors, the plaintiff naturally proceeded at once to alight. The respondent contends that it was still his duty to look and see whether the train had come to a full stop. The plaintiff, on the other hand, contends that he had a right to assume that it had come to a full stop. We think that these differences should .have been solved by the jury. It is true that, notwithstanding the conductor’s words and acts, the plaintiff was still bound to exercise due care. Whether he did so or •not was to be considered in the light of the attendant circumstances. The jury might well have found that he had, in consequence of the conductor’s words and acts, full warrant for the belief that the train had come to a full stop, and that he acted upon a justifiable sense of security caused by these words and acts. The plaintiff, as we have seen, testified that he did not observe that the train was in motion, and the entire absence of jar tended to confirm the impression which had been conveyed by the opening of the vestibule door, namely,that the car was at rest. Nor would the light which shone over and from the vestibule steps necessarily have indicated,.even to the most c'areful observer, that the train was still in motion. There is no evidence that there were in the neighborhood upright objects which, as the train glided past them, would have indicated motion. It is well known that where a gleam of light falls from a moving train upon a perfectly smooth exterior surface, the train itself frequently appears to be stationary. The stream of light naturally moves forward with the train, and gives to it a stationary effect. At all events, the inference to be drawn from the facts, and from the inferential considerations to which we have adverted pro and con, were properly for the jury, and, as the plaintiff was nonsuited, he is entitled to the most favorable inferences deducible from the evidence. (Rehberg v. The Mayor, 91 N. Y. 137.) Under this rule it is entirely clear that the questions of the defendant’s negligence, and the plaintiff’s freedom from contributory negligence, should not have been withdrawn from the jury.

It follows that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Yan Brunt, P. J., Rumsey, O’Brien" and Ingraham, JJ., concurred.

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