
    Edward Dunne, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.
    
      Negligence — obligation, of a railroad company to a passenger’s escort — ordinary care only is required — when -notice of an intention to start the train is required— effect of the escort’s being on the steps of the car—a brakeman need not be stationed at the foot of such steps — a custom to give notice must have been known to the escort to be available to him.
    
    The obligation of a railroad company towards a person who enters one of its trains at a station as the escort of a woman passenger is not as onerous as that which it sustains towards its passengers; it simply requires the railroad company to exercise ordinary care towards the escort while he is entering and leaving the train and while he remains therein.
    In the absence of proof of a custom on the part of the railroad company to warn escorts of the starting of the train, or that the escort at any time notified the railroad company of his errand or of his purpose to leave the train when it departed, the obligation of the railroad company to give the escort notice of an intention to start the train, in order to afford him a reasonable opportunity to alight therefrom, only arises after the railroad company receives, or after it should, in the exercise of due care, have received, actual notice of the escort’s intention to leave the train before its departure.
    Such notice to the railroad company cannot be inferred from the mere fact that the escort was on the steps leading from the train when the signal to start the train was given.
    The railroad company is not, as a matter of law, required to have a servant stationed at the foot of such steps to hold the train until persons escorting passengers have alighted therefrom.
    If, however, such a custom existed, an escort having knowledge of the existence thereof might properly proceed in reliance thereon, but such custom would be of no avail to an escort having no knowledge of its existence.
    Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 23d day of October, 1903, denying the defendant’s motion to set aside the verdict of a jury in favor of the plaintiff and for a new trial of the action.
    
      Hugh A. Bayne [Henry W. Taft with him on the brief], for the appellant.
    
      Michael J. Tierney, for the respondent.
   Jenks, J.:

The plaintiff went into the car of the defendant as escort of a woman passenger. He complains that he was thrown off the car while alighting therefrom, in consequence of the starting of the train out of the station, and he contends that the defendant was negligent in not affording a reasonable period for him to leave the car.

The obligation of the defendant to the plaintiff is not that due to a passenger, but if it suffered him to enter its car it was one of ordinary care while he was entering its car, while he was in it and while he was leaving it. (Thomp. Neg. [2d ed.] § 2658, and authorities cited; Lucas v. New Bedford & Taunton R. R. Co., 6 Gray, 64, and authorities infra.) There is no proof that there was a custom to warn escorts of the starting of a train, or that the plaintiff at any time notified the defendant of his errand or of his purpose to leave the car ere the train drew out. There is no proof of any circumstance which gave notice or ought to have given notice to the defendant that the plaintiff was other than a passenger intending to begin his journey in that train, save such as might arise from his act of alighting. I think that there was no obligation on the defendant to hold the train until every person on the train not a passenger left the train irrespective of the time of the stop made at the station. It would be impracticable if not unreasonable thus to admeasure the duty of the defendant. And it would also be unreasonable to require the servant of the defendant to forbear from giving a signal that the train could proceed, simply because he saw a person walking in the aisle of a car or coming out onto the platform thereof, for those are common practices of passengers who have no intention of leaving the train, even though it be at a standstill in a station. I think that the obligation of the defendant under these circumstances only arose after it had received, or should in the exercise of due care have received, actual notice of the intention of the plaintiff to leave the ear. (Yarnell v. Kansas City, Fort Scott & Memphis R. R. Co., 113 Mo. 570; Coleman v. Georgia R. R. Co., 84 Ga. 1; Thomp. Heg. [2d ed.] § 2658; S. & R. Neg. [5th ed.] § 492a; Railway Company v. Lawton, 55 Ark. 428; Griswold v. Chicago & Northwestern R. Co., 64 Wis. 652; Missouri, K. & T. Ry. Co. v. Miller, 8 Tex. Civ. App. 241; Fett. Pass. Carr. § 237; Louisville & Nashville R. R. Co. v. Espenscheid, 17 Ind. App. 558, 571.) And I think that there is not sufficient proof in this case that the defendant received or should have taken such notice.

It is contended, and such is the view of the learned trial justice, that “ plaintiff was on the platform or step getting off when the train started, and would have been seen there if the defendant had looked before starting to see if any one was getting on or off,” and it is said by the learned justice that the defendant certainly owed that duty to passengers getting on or off, and I think also to any other persons lawfully there.” I think that the vice in this view is the placing the plaintiff in the category of passengers, and in the assumption that the defendant started the train after it had sufficient notice of the intention of the plaintiff to alight. It is to be presumed that at this time the outgoing passengers had left the train, and certainly it is not the duty of the defendant to hold the train in the supposition that passengers “ getting on ” the train intend to get off the train at the same station. A notice which, if it exists at all, must be spelled out of the mere act of descent onto the step is not sufficient under the circumstances of this case to render the conduct of the defendant in starting the train negligence. Indeed, in the absence of any peculiar feature of the act of the plaintiff, it seems almost incredible that the rear brakeman could have signaled the middle brakeman by flash of lantern, and the middle brakeman likewise in turn the head brakeman and the head brakemen likewise in turn the conductor and the conductor the engineer, and the engineer have started the locomotive so as to engage the rails on an upgrade, after the plaintiff had given such notice of his intention and as he was about to step from the last step.” The conductor, moreover, testifies that it required about half a minute for the engineer to start the train after receiving his signal. Even if the estimate be inaccurate, it is certain that some interval must elapse before the wheels can engage the rails.

Stress is laid by the plaintiff upon the fact that there was no brakeman at this place. The evidence upon this issue is unsatisfactory, for the plaintiff testifies only on rebuttal that there was none on either platform of the cars, or “ on the station platform that I could see,” and the passenger whom he escorted testifies also on rebuttal that there was no brakeman at the platform by which I entered the car, or on the station platform opposite.” The weakness of this testimony is due to the facts that the regular post of the brakeman at this time was on the station platform, and that he only boarded the train as it moved out, and hence the plaintiff only testifies that he could not see a brakeman at his usual post, without testifying that he looked to see, and in the face of the probability that his attention was absorbed in his act of alighting. As to the other witness, she speaks only of the time when she entered the car, while the accident occurred after a seat had been found for her in the car and her luggage had been placed beside her. Opposed to this testimony is that of the conductor and the brakeman. But even conceding that the presence or absence of the brakeman at this particular place presented a question for the jury, I fail to see its bearing upon the issue of the defendant’s negligence. I think that the defendant was not required as matter of law to have a servant stationed at the foot of these steps to hold the train until a person not a passenger could leave the train, when that person only signified that intention by his act of alighting therefrom. If, however, it was the custom of the defendant to station a brakeman there, who must not signal until every person, even those in the act of alighting, had reached the ground in safety, and the plaintiff knew of this custom, he had the right to act in reliance on its observance; but as to that there is no evidence. For aught that appears, even if he failed to see any brakeman, he knew of no custom to have one stationed there, and, therefore, he took the consequences of his act in proceeding to alight from the car.

In Sutton v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 243) Andrews, J., says: Negligence is ordinarily a question for the jury, but only when the facts would authorize a jury to infer it.” In Heaney v. Long Island R. R. Co. (112 N. Y. 122) Judge Gray says: “ Where it is sought to hold another liable for the damage occasioned by some alleged negligent act the negligence is to be made out by some positive proof or by proof of circumstances from which the jury may fairly infer the existence of the negligence.”

I think that the order must be reversed and a new trial granted.

All concurred.

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