
    Rosanna Murphy, Resp’t, v. The Rome, Watertown & Ogdensburg R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department
    
    
      Filed May 23, 1890.)
    
    1. Negligence — Railroads—Charge.
    Plaintiff was injured by the starting of defendant’s train as she was alighting therefrom. The court charged that if the jury found that defendant was negligent in starting the train, they should examine the question as to whether plaintiff was guilty of contributory negligence; and that if, under the circumstances, she acted ns a prudent and careful person would have done she was not negligent.
    53. Witness — Credibility,
    The mere fact that there is a difference in the testimony of the plaintiff on different trials of the same action does not, as matter of law, discredit that last given. Such fact may be proper to call to the attention of the jury, but they are to determine the credibility of the evidence.
    The trial was had in the Jefferson circuit and resulted in a verdict for the plaintiff for $2,000. A motion was made.foranew trial on the minutes and was denied,and judgment and order were entered in Jefferson county, and the defendant appeals from them. It is alleged in the complaint that on the 12th of May, 1888, the plaintiff, a widow, about thirty-eight years of age, took passage in defendant’s passenger train at Watertown for Felts Mills, paying her fare; and upon arriving at Felts Mills station, after the train stopped, as she was about to step down upon the platform with one foot on the steps of the cars leading down and the other just upon or about being placed upon the platform in making her exit from the coach in which she rode, the train started up, throwing the plaintiff down under the cars, whereby she was injured without her fault; and the complaint alleges negligence in the defendant in suddenly starting up the train without giving sufficient time for the plaintiff to alight; and that she was injured without her fault.
    The answer admits the incorporation of the defendant, and that it was “ engaged as such in the carrying of freight and passengers over its various lines, and as such, on the 12th day of May, 1888, it ran and operated trains from Watertown * * * for the conveyance of passengers for hire; ” and it denies the other allegations of the complaint. There had been a previous trial of the action and the jury disagreed. In the course of the charge the trial judge in dealing with the question of whether the plaintiff was guilty of contributory negligence or not, observed, viz.: “ Taking this Woman just as she was, you are to determine just what she did and how she acted, and then the test is whether in just what she did she exercised as much care and caution as an ordinarily careful and prudent person would do. * * * If you find that under just the circumstances in which she was placed and just as she was there she acted as carefully and prudently as an ordinarily careful and prudent person would act, then she was not guilty of contributory negligence.”
    Upon the question of whether the defendant was guilty of negligence, the trial judge observed : “As to whether the neglect by defendant of a duty imposed upon it by law caused this accident to occur, if you find that they were not negligent or that the negligence did not cause the accident, then the plaintiff cannot recover. But if you find that.the defendant was negligent, and that its negligence caused the accident, then you pass to examine the other question, of the presence or absence of contributory negligence on the part of the plaintiff, because the law has long been settled in this state that no matter how negligent a defendant may be in an action of this kind, the plaintiff must come into court with clean hands.” In delivering the charge the trial judge very extensively commented upon the facts bearing upon the two questions which are embraced in the quotations already made from his charge.
    
      Edmund B. Wynn, for app’lt; Wilbur F. Porter, for resp’t.
   Hardin, P. J.

Carefully and cautiously the trial judge laid down the rules of law applicable to the principal questions presented by the evidence in this case. He kept carefully within the principles laid down by the court of appeals (second division) in McDonald v. Long Island Railroad Company, 27 N. Y. State Rep., 481; in that'case it was held, viz. : “It is the duty of a railroad company to give passengers a reasonable opportunity to leave its trains at station where it stops, and reasonable diligence on the part of its passengers is also required; a passenger has the right to assume that he will have reasonable opportunity to get off the train before it is started.”

We are satisfied upon a careful perusal of the evidence that it required that the trial judge should submit to the jury the question of whether or not the plaintiff was guilty of negligence which contributed to the injury. Suiter v. N. Y., L. E. & W. R. R. Co., 7 N. Y. State Rep., 687.

The language of Ruger, Ch. J., in Parsons v. The N. Y. C. & H. R. R. R. Co., 113 N.Y., 364; 22 N.Y. State Rep., 697, is pertinent and applicable; he says: “ The question is, whether the injured party, under all of the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. This rule must in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury. We think that the jury could properly find that the deceased did, under the circumstances of this action, exercise such care and caution as exempted him from the imputation of negligence.’’

The learned counsel for the appellant has brought in juxtaposition in his points the evidence which he supposes the plaintiff gave on the former trial and the evidence which she gave upon the trial now before us, and because of the difference found in the evidence of the plaintiff on the two occasions he argues that it “ should of itself utter a discredit to the second version.” Such an argument was a proper one to press upon the attention of the jury; it cannot, however, be allowed to persuade us to overturn the verdict. It was for the jury to determine what credence should be given to the plaintiff’s evidence as it appeared upon the trial now before us.

In Cleveland v. New Jersey Steamboat Co., 25 N. Y. State Rep., 666, a somewhat similar question was considered by this court, .and we there held, viz.: “ The mere fact that there are some contradictions in plaintiff’s testimony when compared with that given by him on a former trial does not, as matter of law, discredit him as a witness.”

We think the evidence abundantly supports the verdict of the jury in finding that the plaintiff was not guilty of contributory negligence, and in finding that the defendant was guilty of negligence which caused the injuries which the plaintiff received on the occasion when she attempted to alight from the passenger train of the defendant at Felts Mills; and that the case properly falls within the principles laid down in McDonald v. Long Island Railroad Co., supra.

Judgment and order affirmed, with costs.

Mabtin and Mebwin, JJ., concur.  