
    Englehart Wandell, App’lt, v. Austin Corbin, as Receiver of the Long Island R. R. Co., Respt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    Negligence—Railroad—When it is not negligent for passenger to LEATE A TRAIN AT A SWITCH STATION RESEMBLING A PASSENGER STATION.
    On the trial of an action for damages for injuries alleged to have been caused by defendant’s negligence, there was evidence tending to show that plaintiff, a member of a regiment, boarded a special train at Long Island City, with his company, bound for Creedmoor. The train stopped at Rockaway junction, and there remained about twenty minutes to permit a westward bound express train to pass on its way to Long Island City. No caution was given, nor was there any announcement of the object for the stop. Plaintiff, sick from excessive heat, needing water, looked out » and saw a long platform, which appeared like a passenger platform, and a house on which was the sign “Rockaway Junction.” ' He left his waiting train, crossed the northerly track and, as he crossed it, looked eastward and saw no train coming westward, although he could see nearly two miles. He entered the said building adjoining the track to get a drink of water, and while drinking, having taken a single swallow, heard a bell ring, rushed out of the building to board his train, and just as he came to a point where he could look eastward to see if a train was coming, he was struck and injured by the west bound locomotive. There was a conflict of testimony as to whether the bell plaintiff heard was the one on his train or not. Held, that it was a question of fact for the jury. That the evidence did not justify the court in holding as a matter of law, that plaintiff had abandoned his relation as a passenger to defendant.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the plaintiff’s complaint on the merits.
    This is a motion made on the part of the plaintiff, pursuant to section 1000 of the Code of Civil Procedure, for a new trial.
    The action was brought by the plaintiff to recover damages for personal injuries sustained by him through the negligence of the defendant’s servants.
    At the close of plaintiff’s case, the court granted a non-' suit, and ordered that plaintiff’s exceptions be heard in the first instance at the general term, and that judgment be suspended in the meantime.
    On the 21st day of July, 1881, the plaintiff was a member of the Twelfth New York Infantry Regiment, a state military organization located in New York city. Early in the morning of that day the plaintiff proceeded with his regiment to Hunter’s Point (Long Island City), and took passage for Creedmoor upon one of the trains of the Long Island R. R. Co., a steam railroad operated by the defendant.
    About half an hour after the train started it arrived at a place called Rockaway Junction, and stopped opposite a small two story frame building, upon which was a large sign, reading “ Rockaway Junction.”
    There was a platform attached to this house which extended along the line of and close to the railroad tracks to another platform, a few hundred feet west of the building.
    The train upon which the plaintiff was a passenger consisted of several open cars, the seats of which extended across the cars, and were entered through openings on the sides. The plaintiff occupied a seat in the rear part of the last car, and when the train stopped, the Eockaway June tian house was but fifteen feet from where he was seated in the car.
    The train was delayed at this place about twenty minutes, to permit two west-bound trains, which were using the main east-bound track, east of Eockaway junction, to pass from those tracks to the main east-bound track, by means of the switch, east of the Eockaway junction house. During the delay of the train, a large number of the soldiers were permitted without objection to leave the train, and were about the grounds near the railroad tracks; some were picking berries and cherries, while others were strolling about. The plaintiff did not know the cause of the stoppage of the train, and, becoming ill and weak from the effects of the heat during the delay of twenty minutes, and there being no water on the car, he asked one of his military comrades where water could be procured, and was informed that the brakeman said there was water in this house, which was just across the intervening northerly tracks.
    The plaintiff’s comrade then entered the house at the plaintiff’s request for the purpose of obtaining water for him, and returned to the train, and informed the plaintiff that there was no cup in the house, and that the plaintiff would have to go after the water himself. The plaintiff then handed his gun to his comrade, leaned out of the left side of the car, and looked east along the northerly track, over which he had to cross to enter the house. He could see for a distance of two miles straight ahead, and seeing no train approaching, he crossed the tracks and entered the house through the door, which was on the west side of the house, and, just as he was in the act of taking a drink of water, the bell on the locomotive of the standing train began ringing, summoning the passengers who left the train to return to it, and, without waiting to drink as much as he desired, the plaintiff proceeded to return to the train.
    But, just as he passed beyond the line of the house, he was struck by the locomotive of a train on the northerly tracks, which approached from the east at a very rapid rate of speed, of about thirty-five miles an hour, no warning of its approach by ringing the bell or sounding the whistle on the locomotive or otherwise being given. The distance between the line of the house and the nearest track is five feet six inches; the locomotive overlapped the track twenty inches. " The plaintiff took but one step, which carried him about eighteen inches beyond the line of the house, and, before he could take another step, or recover himself, he was struck. He looked as he passed beyond the line of the house, and saw the approaching train, but it was upon him at the time, and he could not avoid it. Several passengers who were seated in the standing train, far more favorable than the plaintiff to see the approaching train, testified that they did not discover it until the instant of the accident. The train which .struck the plaintiff approached upon the main track upon which plaintiff’s train was standing, but could not be seen by the plaintiff when he leaned out of the side of the car he was in to look before crossing the intervening tracks to the house, and it occupied less than eight seconds for the approaching train to pass from the switch by which it entered upon the northerly tracks to reach the point where the plaintiff was struck. The bell on the standing train continued to ring, summoning the passengers aboard from the time the plaintiff entered the house until after the accident, and the passengers who had left the train, and were about the adjacent grounds, began returning to the train pursuant to the command of the bell. The injuries received by the plaintiff necessitated the amputation of his left arm and foot.
    
      John J Leary, for app’lt; Hinsdale & Sprague, for resp’t.
   Pratt, J.

We carefully examined this case on a former appeal, and upon the facts then disclosed, held that it ought to have been submitted to the jury on the question of negligence of both plaintiff and defendant. 38 Hun, 391. The trial court, after hearing all the evidence, has again dismissed the complaint without submitting the case to the jury. It, therefore, follows that this judgment must be reversed and a new trial ordered unless some new fact has been presented which substantially changes the case, and obviates the difficulties which we then considered.

It will be unnecessary to repeat the reasons which we gave in sustaining the exceptions on the former argument; suffice it to say that while the place at which defendant’s eastward train stopped to permit the Patchogue express to pass westward may not have been a regular station, there was, nevertheless, a sign on the building appropriate to such a station—“ Rockaway Junction;” and it may very well be that one unfamiliar with the locality might reasonably have mistaken the place for a passenger station. The fact remains that the plaintiff’s train had stopped at this place and waited for some fifteen or twenty minutes on the south track. Plaintiff, sick from excessive heat, needing water to quench his thirst, left his waiting train, crossed the northerly track, and as he crossed it, looked eastward and saw no train coming westward although he could see nearly two miles. He entered the building adjoining-the track to get ,a drink of water, and while drinking, having taken a single swallow, heard a bell ring, which he took to be the signal for the starting of his train. An attempt was made to ■show that the sound was not from the bell on his train, but the engineer does not say positively that he did not ring his bell; and, if he did, his statement would present a question ■of credibility for the jury, in view of his relations to defendant. Hearing this bell, plaintiff rushed out of the building to board his train; and just as he came to a point where he •could look eastward to see if a train was coming, he was struck and injured by the west bound locomotive. It certainly was a question of fact whether or not he was negligent in this emergency. We cannot say, as matter of law, that negligence can be attributed to him at this point. On the other hand, we cannot say that it was negligent for a man situated as plaintiff was to leave his train to get water at such a place. The jury were to judge of that.

The fact also remains that the defendant gave no warning of the extreme danger of leaving a train at this point, which we pointed out at 38 Hun, 391. It seeks to shelter itself behind an order given to this company by its captain before it boarded the cars; that the men must not leave the train until it arrived at Creedmoor. But plaintiff testified that he heard no such order, and there was evidence tending to refute the statement that any such order was given. Several members of plaintiff’s company, situated so that they would naturally have heard such an order if given, testified that they heard nothing of the kind. And, besides that, a jury might well have found from this evidence that plaintiff’s sickness was such that his leaving the train for water was justified, so far as the order of the commandant was concerned. At all events, this order, even if given, seems to us a poor excuse for the defendant’s omission to give any warning of the special dangers which we pointed out in our former opinion.

We think that evidence will not justify us in holding, as matter of law, that plaintiff had abandoned his relation as a passenger to defendant. It is plain that that was not ¡plaintiff’s intention.

The case, it is true, has been somewhat changed, but not in the essential particulars pointed out in our former decision. We think it ought to have been submitted to the jury under proper instructions.

The judgment must be reversed and a new trial ordered, with costs to the plaintiff to abide the event of the action.

Barnard, P. J., concurs; Dykman, J., not sitting.  