
    Mark E. Wood, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    ' Third Department,
    December, 1905.
    Negligence — injury by sliding door to passenger riding in baggage compartment—when negligencé of defendant and-contributory negligence of plaintiff for the jury.
    The plaintiff wa's a passenger in a car of the, defendant and was riding in a portion of such car used for baggage. All the other cars in. the -train were freight cars, .and the plaintiff,k after walking thiough the portion-of the car fitted for passenger service, had found it cold, and, on complaining -thereof to the conductor, had been directed to sit in the baggage compartment of said car where a fire was built for hi's comfort. Behind the bench on which he sat was a vertical row of slats. 'His elbow projecting between said slats was in j ured -by the sudden opening by a trainman .of a door which slid in" the recess formed by said slats.
    
      Held, that as, under the circumstances,-the plaintiff had’been invited to ride.in the baggage compartment by the conductor without warning as to the said, danger, the question as to whether the defendant had provided a safe place in which to sit should, have been left tó the jury; ■-
    That there was no contributory negligence, as a matter of law; for the danger was not sufficiently obvious. '
    
    ; Appeal by the plaintiff, Mark E. Wood,, from a judgment of the Supreme Court in favor of the defendant, entered, in the office of the clerk of the county of Tioga on the 25th day of October,, 1904, upon a nonsuit granted by the court after a trial at the Tioga Trial Term, and also from an order entered in said clerk’s- office on the 29th day of September, 1904, denying the plaintiff’s motion for a 'new trial made upon the minutes.
    The action is brought to recover damages for personal injuries sustained by the plaintiff while riding as a passenger in a .baggage car on the defendant’s road. The car was divided into two compartments, the forward one for passengers and the rear one for baggage. On either side of the baggage compartment was a sliding door through which baggage was received and discharged. There was.also on either side a seat running lengthwise of the car, and behind each seat were slats running vertically to the top of the car and about five inches apart. The sliding doors, when opened, passed behind such slats and between them and the side of the car. While riding upon one of such seats, the plaintiff’s . elbow was inserted between the slats behind the seat, and in the opening of the sliding door on that side by one of the trainmen the elbow was jammed between it and the slats and the .plaintiff thus received the injuries of which he complains.'
    At the close of the plaintiff’s case the trial court granted a nonsuit, and from the judgment entered thereon and from an order denying the plaintiff’s motion for a new trial this appeal is taken.
    
      Wallace H. Foster and Lynch & Dams, for the appellant.
    
      John B. Stanchfield and Halsey Sayles, for the respondent.
   Per Curiam :

If that compartment of the car in which the plaintiff was riding at the time he was injured was used as a baggage car merely, it is probable that no negligence could be predicated against the defendant upon the theory that the seat in question was constructed in an unsafe and improper manner. The serious question is whether, as between this plaintiff and the defendant, it was not being used as a passenger car in which to transfer him to the place to which he was ticketed. All were freight cars except the rear one on the train. That was in construction an ordinary passenger car, except that it was divided into two compartments; the forward .half, or thereabouts, fitted with the usual passenger seats for two along the sides, with an aisle in the middle, and the rear part of the ear fitted up as an ordinary baggage car, with a sliding’ door, on either side. This train, however, was an accommodation train, so called, carrying both freight and passengers, and it was the evident purpose of the company to use the forward part of the rear car to carry passengers in, and to use the rear part as a baggage car, and in which the trainmen should ride.

The plaintiff, upon taking the train at about seven o’clock in the forenoon of September 21, 1903, entered at the rear end and walked through the whole lengtli of this car. • He found .all of the seats for passengers in the forward end vacant. The morning was awery chilly one and the car was cold. The method of heating that' car was by a stove" in each compartment. He went back into the rear part and found the conductor there, and told him it was uncomfortably cold. The conductor thereupon directed one of the trainmen to build a fire in the stove that was in the rear compartment. No fire was built, or offered to be built, in the stove in the front compartment, but the fire.was 'built as directed in the rear one. The plaintiff thereupon sat down on one of the seats near the stove, and the conductor soon afterwards took up the ticket on which he was traveling. There was at the time another passenger also riding in that compartment. 'While so sitting there the plaintiff put his arm upon. the back of his seat. Without his noticing it,. his elbow extended back between-two of the upright slats. One of the trainmen opened the door- of that compartment on that side of the car, and in so doing shoved it with considerable force against the plaintiff’s elbow that so protruded between: the slats and thus caused the injury to 'recover damages for which this action is brought. Under such circumstances is not the defendant to be held to the same responsibility for the injury that it would be had- it Occurred in the front part-of .that car ? . I am of the opinion that-it should be. It can hardly be said that the plaintiff voluntarily and without any reason except his own curiosity or some other impulse inspired entirely by his own desire, left the car provided for passengers and went into one in. which it was.not intended that passengers should ride. It seems rather that he took his seat in the one that the conductor, at that time, and "in the emergency thén confronting them, provided for him. Bather than build a fire in both compartments, the conductor seems to have concluded that one in the rear could be utilized for both trainmen and passengers for the time being at least, and so practically directed the plaintiff to take the seat which'he did take. It was not a mere permission by the conductor that the plaintiff might ride in the baggage car if he desired, but a fire was there provided for his use, and he was thereby substantially informed that there was the place where he was to ride and have the benefit of it. When the plaintiff entered upon that train he had the right to expect that the car and the seat which the company provided for him to ride in would be as safe as could with reasonable diligence at least be procured, and so long as-he occupied the car and seat so provided the company was not relieved from that duty.

If in the present case the company would relieve itself from that liability by pleading that neither the seat nor car in which plaintiff rode was intended for passengers, and, therefore, was not constructed in as safe a manner as it otherwise would have been, it should not have utilized such place for that purpose, or if the emergency was such as compelled its use in this instance, it should, at least, have warned the plaintiff against the possible danger that existed in so^ using it.

Assuming then, as I conclude we must, that • this plaintiff was riding in the place which the defendant provided for him, it clearly cannot be said, as matter of law, that such place was as safe as could have been procured, or under all the circumstances should have been required; at least it was for the jury to determine that question.

Bor can I agree with defendant’s counsel, that plaintiff was to be charged, as matter of law,, with contributory negligence for not taking notice of the situation, and for sitting with his elbow through the slats. The result which would follow in that case from the opening of such door was not so obvious as to warrant such an holding. I conclude, therefore, that the nonsuit was unwarranted, and for such error the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment and order reversed and a new trial granted, with costs to appellant to abide event.  