
    Marie H. Weld, Resp't, v. The New York, Lake Erie & Western Railroad Co., App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Negligence—Married women—Parties.
    In t.he interval between the passage of the repealing act of 1880 and that of chapter 248, Laws 1890, a married woman could maintain, an action for injuries to her person without joining her husband as a plaintiff.
    2. Same—Railroads.
    By reason of a wreck at a crossing it became necessary for defendant to transfer its passengers, and in doing so it furnished a single brakeman with a lantern to guide the entire party. Plaintiff, who was traveling alone, and was not in good health, became nervous, fell behind the party, became unable to distinguish the lantern from other lights, fell, and was injured. Reid, that whether defendant exercised reasonable care under the circumstances, and whether plaintiff was guilty of any omission of reasonable care for her safety, were questions for the jury.
    
      Appeal by the defendant from a judgment entered on the verdict of a jury at the Niagara circuit, and from an order denying the defendant’s motion for a new trial on the minutes of the court.
    
      A. D. Scott, for app'lt; S. E. Filkins, for resp't.
   Dwight, P. J.

The action, begun in December, 1888, was brought by a married woman for a bodily injury sustained by her in October of the same year, by reason, as alleged, of the negligence or breach of duty of the defendant as a common carrier of passengers. The point chiefly discussed "presents the question whether, after the passage of the repealing act of 1880, Laws of 1880, chap. 245, § 1, subds. 86-38, and before the act of 1890, chap. 248, which amended § 450 of the Code of Civil Procedure, a married woman might maintain an action in her own name for an injury personal to herself, without joining her husband with her as a plaintiff. The question has been a good deal mooted, and the subject of conflicting decisions at special term. But there have been two general term decisions, in the third and fourth departments, which agree in holding in favor of the right of the married woman, during the interval of time mentioned, as before and since, to maintain the action in her own name without joinder of her husband. Those cases are Campbell v. Perry, 29 St. Rep., 670, and Haden v. Clarke, 32 id., 478.

Those cases also agree in holding, the former in an opinion by Learned, P. J., and the latter by Martin, J., that the case of Bennett v. Bennett, in the second division of the court of appeals, 116 N. Y., 584; 27 St. Rep., 697, is controlling authority for the conclusion reached by them. We think there may be some question whether, in view of the manner in which the court divided in making its judgment in the last mentioned case, it can be fairly said that the decision is altogether authoritative on the particular question here proposed. But we believe that the three cases taken together have been generally received, by the bench as well as the bar of the state, as finally settling the question, and we are not disposed to disturb the conclusion thus reached.

The facts of the case out of which the only remaining questions arose were briefly these. The plaintiff, an elderly woman, not in good health, was near the end of a continuous journey from St. Louis, Mo., to her home in Medina, in this state. At Buffalo she purchased a ticket from that city to Lockport by the defendant’s road, and became a passenger by one of its trains which left Buffalo between 8 and 9 o’clock in the evening of October 6th. On reaching Tonawanda it was discovered that a wreck of cars on the New York Central railroad had occurred at the crossing of the defendant’s road by that of the former company, which so blocked the defendant’s track as to render it necessary to transfer passengers to a train on the other side of the wreck. In doing this, a single brakeman was detailed to proceed with a hand lantern and guide the company of twenty-five or thirty passengers around the wreck. The plaintiff was’traveling alone, except for chance companions of the journey; was somewhat impeded by her hand luggage; she was timid and soon became nervous and agitated from the unexpected demand upon her strength; after passing the wreck she naturally fell behind the other passengers and became unable to distinguish the lantern of the guide among the scattered lights, which confused and misled her, and before reaching the train she stumbled and fell, receiving the somewhat serious injury of which she complains.

The two questions which were, with great fairness, submitted to the jury, were, first, whether the defendant’s servants and agents, engaged in making the transfer, exercised all reasonable care to furnish to its passengers, the aged and weak as well as the young and vigorous, such light and guidance over an unknown and difficult way as reasonably to secure to them a safe and comfortable passage on foot from one train to the other; and, second, whether the plaintiff herself was guilty of any omission of reasonable care for her own safety, which contributed to occasion the accident to herself.

These were manifestly questions which could not properly be withheld from the jury, and they were answered in her favor, upon evidence which can hardly be said to have been conflicting in any material respect. The verdict, which was for a recovery in a very moderate amount, cannot be disturbed on general principles, and there was no particular exception in the case by which it is vitiated.

The judgment and order appealed from must be affirmed.

Macomber and Haight, JJ., concur; Lewis, J., not sitting.  