
    KENNETH E. MACLENNAN, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.
    
      Hailroad company—intending passenger j rights and duties of; contributory negligence. — Carrier ; negligence and duties of.—Evidence; mental operation, as to loss of business and permanency of injury, as bearing on.
    
    Where, to prove a cause of action or a defense, it is necessary to show that a witness acted upon a certain supposition, evidence to that effect is material and relevant, and he is a competent witness to testify that he so acted ; but it must also be shown by the evidence that the appearance justified the witness in having the supposition, and that the party against whom he testified was responsible for that appearance.
    Accordingly, where the plaintiff, on coming out of the passenger depot where he had bought his ticket, on to the platform, which was joined to and on the same level with the platform to the freight station, which was some distance from the passenger station, and which latter platform (i■ e., the one in front of the freight station) appeared to be used in connection with said freight station, saw a train of cars with an engine attached, heading in his direction, standing on the track some distance away.
    
      Held, tha-t he had a right to suppose that the train would bo brought up to the passenger station and then stop to take on passengers ; and that his waiting, in the passenger station, for the train to come up and stop, was not negligence contributing to the injury received in the dark by falling over an obstruction, to wit; a box in his way on the freight platform, wdiile proceeding to take the train at the place where it stood, as soon as he was notified' by the ticket agent that the train would start from there.
    
      Held further, that his running, while so proceeding, instead of walking, was not, under the evidence, contributory negligence, as matter of law.
    
      Held further, as resulting from above holdings, in an action for injuries so received, that requests to charge (1st) “that it was the duty of the plaintiff to take notice of the time of the departure of the train and to board it at a reasonable time before departure,” and that (2d) “ if the plaintiff remained near a light for the purpose of reading a book, and then, at the last moment, attempted to board the train when the time was so short that he could not do so in a prudent and careful manner, he was guilty of negligence,” and that (3d) “the company has a right to make up its train and let it stand in front of any part of the station connected with the station as a starting point, and that it was the duty of the passenger to inquire whether it would stop in front of the station or not,”—were properly refused.
    
      
      Further held, that if the defendant used the freight platform for a passenger platform, so that passengers were obliged to go from the latter to the former, and especially if the defendant’s employees invited the plaintiff to go on the line of approach which he took, the court could not say, as matter of law, that the defendant had a right to leave the box in the way of the plaintiff; and there being evidence on which the jury might have found in both these questions in plaintiff’s favor, and the box having been there for some time, it was properly left to the jury to determine whether or not the defendant was guilty of negligence in leaving the box where it was under the conditions under which it was so left. "Where it is sought to prove damages for loss of business, evidence of particular facts, where there is no effort to make the testimony the ground of any claim for damages for specific loss therefrom, is admissible to show the general character of the business lost.
    The plaintiff, being a physician, may he asked whether, from his experience as a physician, there is any probability of his suffering thereafter, from a particular one of the injuries received, damages which are claimed in the action. An answer: l-No probability, only a possibility,” is favorable to the defendant.
    Before Sedgwick, Oh. J:, O’Gorman and Ingraham, JJ.
    
      Decided April 6, 1885.
    Appeal by defendant from judgment entered upon a verdict for plaintiff.
    The action was for damages from negligence of defendant’s servants.
    The facts sufficiently appear in the opinion.
    
      Hinsdale & Sprague, attorneys, and E. B. Hinsdale, of counsel for appellant, on the questions considered in the opinion, argued.
    I. The motions for non-suit should have
    been granted for failure to prove negligence on the part of defendant. The defendant was not bound to have the train drawn up to a point opposite the door of the depot. Such a proposition is unworthy of serious consideration. Nor was it bound to put up a notice advising passengers of the spot from which the train would start. It is the duty of passengers to inform themselves of the ordinary incidents of railway traveling, and to inform themselves of the company’s regulations for running its trains (Mitchell v. Chicago & G. T. R’w’y. Co., 12 Am. & E. R. 
      
      R. Cas. 163 ; Little Rock & Forth Smith R. R. Co. v. Miles, 13 Id. 10). Defendant was undoubtedly bound to provide a reasonably safe and proper means of ingress and egress between the station and the train, so that a person exercising ordinary care could safely pass from one to the other (Loftus v. Union Ferry Co., 84 N. Y. 460). This duty was performed.
    The box was not an obstruction, and its being there was no violation of defendant’s duty towards its passengers. It is established by. the testimony, and shown by the map, that the box occupied less than two feet of the outer side of the platform (away from the train), the platform being at that point six feet two inches wide. There was, therefore, a clear and unobstructed passage way from the station door to the train of nearly five feet (being at some points much wider). In Loftus v. Union Ferry Co. (supra), the rule is thus laid down : “ The defendant was bound to provide suitable and safe accommodation for the landing of passengers. . . . But the rule does not impose the duty of so providing for the safety of passengers that they shall encounter no possible danger and meet with no casualty ” (See also McMahon v. N. Y. El. R. R. Co., 50 Super. Ct. 507 ; Dougan v. Champlain Trans. Co., 56 N. Y. 1). Any inference of negligence on the part of the company in permitting this box to remain upon the platform is negatived by the fact that the box had been there a long time, hundreds of passengers had got on and off at the same spot, and no injury had been caused or inconvenience occasioned. This principle has been frequently laid down by the courts (Loftus v. Union Ferry Co., supra; Dougan v. Champlain Trans. Co., supra; Crocheron v. N. S. Staten Island Ferry Co., 56 N. Y. 656 ; Cleveland v. N. J. St’mbt. Co., 68 Ib. 306, 313).
    II. The motion for non-suit should have been granted^ because there was a failure to prove that the deceased was free from negligence, and also because the evidence showed that he was in fact guilty of such negligence. It was incumbent upon the .plaintiff to give some affirmative evidence of his exercise of care. And where the proof is not inconsistent with the theory of contributory negligence, a non-suit should be ordered (Hale v. Smith, 78 N. Y. 480 ; Cordell v. N. Y. C. & H. R. R. R. Co., 75 Ib. 330 ; Baulec v. N. Y. & H. R. R. Co., 59 Ib. 356). It was undoubtedly the duty of the plaintiff to use his eyes, and look out for obstacles in the pathway. There is a limit to the degree of necessary caution ; but still some care and foresight must be shown (Delaware, Lack. & W. R. R. Co. v. Napheys, 1 Am. & E. R. R. Cas. 52 ; and cases supra). The case is absolutely barren of any such evidence. The plaintiff says, of course, in just so many words, that there was not light enough to enable him to see the box, but he nowhere says that he looked for any obstruction.
    The plaintiff had no right to assume that the train would start from a particular part of the platform (See cases, supra). Having time enough to have made inquiries and boarded this train in a proper and careful manner, it was grossly careless of him to deliberately place himself in such a position that, at the last moment, in his eagerness to catch this, the last train, he would be naturally impelled to start up suddenly and begin to run along a comparatively narrow platform. This negligence had a direct connection with the injury (Little Rock & Fort Smith R. R. Co. v. Miles, 13 A. & E. R. R. Cas. 10).
    The running along the platform was, in itself, negligent. If it be said that he was compelled to run, we answer : a. It does not appear there was any such necessity. It may well be, for all there is of evidence to the contrary, that the train would have waited for him to have boarded it in a proper manner, b. Such a necessity was of his own creating and not in any way chargeable to -the defendant, c. If the plaintiff saw that he did not have time to go to the train in a careful manner, then it was his plain duty to have refrained from going at all; holding the defendant responsible for any violation of duty of which it. was guilty; but he had no right to do a negligent act which his physical situation enabled him to avoid (Cincinnati, &c., R. R. Co. v. Peters, 6 Am. & Eng. R. R. Cas. 126 ; Watkins v. Great Western R.R. Co., 37 L. T. N. S. 193).
    III. The motion for new trial should have been granted (Smith v. Ætna Ins. Co., 49 N. Y. 211; Houghkirk v. D. & H. C. Co., 92 Ib. 219).
    IV. The court below erred in ruling upon questions of evidence. The exception to the ruling as to plaintiff’s suppostion was well taken. It was wholly immaterial whether the plaintiff supposed the train was to draw up in .front of the station door or not. It was his duty, under the cases above cited, to inform himself of the actual situation, and act according to the facts. The evidence being utterly incompetent from any point of view, it was not necessary to state the ground of objection (Burns v. City of Schenectady, 24 Hun, 10 ; Mulqueen v. Duffy, 6 Ib. 299; Porter v. Parks, 2 Ib. 654 ; West v. Lynch, 7 Daly, 245). The objections to the evidence as to his giving up a particular patient, and as to patients calling to see him who were denied admission, were wholly irrelevant; especially in view of the fact, 'that no attempt was made to show that he lost any money in losing these patients. Yet it may well be that a large portion of the amount awarded in the verdict was based upon this vague and improper testimony. The question as to probability of future suffering from the injury to the nose was clearly improper. Any testimony in response to such a question would be, and in this case was, entirely too vague and speculative to be a proper foundation for the assessment of damages (Strohm v. N. Y. L. E. & W. R. R. Co., 96 N. Y. 305).
    V. The court below was in error in refusing defendant’s requests to charge. The first request embodied a sound proposition of law ; was not covered by the charge, and had direct bearing upon the issue (Mitchell v. Chicago & G. T. R. Co., 12 Am. & E. R. R. Cas. 163; Little Rock & Ft. Smith R. Co. v. Miles, 13 Am. & E. R.R. Cas. 10). The second request was equally proper, pertinent and necessary. The refusal of the court to charge as thirdly requested, was also error for which the judgment should be reversed.
    
      Oliver W. West, attorney, and of counsel for respondent, among other things, argued:
    I. It was the primary duty of the defendant to start its trains from in front of the station ; but it being its custom not to do so, but to start them from a point sixty or seventy feet eastward therefrom, and to pass the station without stopping, it was its duty to give timely notice to its passengers, either orally or by written or printed notice, of the place of starting, and its failure to do so was negligence (Hurlbert v. N. Y. C. R. R. Co., 40 N. Y. 145). The only notice given the plaintiff was an oral one just as the train was about to start.
    II. It was the duty of the defendant to keep its platform, which was the only passage way for passengers to use in getting on board its trains, free from obstructions ; and its admitted failure in this respect was negligence (Clussman v. L. I. R. R. Co., 9 Hun, 618 ; Hurlbert v. N. Y. C. R. R. Co., supra). The box in question ought not to have been kept in the way of passengers, even in the day-time, but should have been kept in the freight house, or, at all events, near it and at the east end of the station building, and thus out of the way of passengers ; and its continued presence where it was kept, especially in the night-time, was gross if not criminal negligence.
    III. The plaintiff was not guilty of any contributory negligence. This, as a matter of fact, the jury must have found, otherwise their verdict would have been in favor of the defendant. The general term will not, therefore, disturb the verdict on this question of fact (Murphy v. Lippe, 35 Super. Ct. 542. The only facts proved, which, the defendant insists, constituted contributory negligence were : 1. The omission of the plaintiff, on or after buying his ticket, to inquire where the train would start from. 2. His standing by the depot door reading and waiting for the train to come up and stop, instead of early inquiring where the train would start from and going immediately onboard at his leisure. 3. His running or “trotting” towards the train after the conductor shouted, “All aboard !” .4. His omission, in these circumstances, to see and avoid the box.
    The time-table of the defendant was notice to the plaintiff that the train .would start from the station, and he was therefore excused from inquiry if it would start elsewhere. This being so, it was immaterial how he occupied his time, whether in reading or otherwise, while waiting for the train, so long as he violated no rule of the company, and so long as he obeyed any instructions given him by the defendant. Ho such disobedience is asserted. On the contrary, it is undisputed that he at once obeyed the directions of defendant’s employees, and while hurrying in compliance with those directions, neither his obedience thereto nor his failure in the darkness to see and avoid the danger from the obstruction which the defendant had no right to place in his only pathway, and which rendered the pathway unsafe instead of safe, as he had a right to assume it to be, can on any principle be held to be contributory negligence. And even if the box was rightfully where it was, and the plaintiff, ignorant of its existence, had stumbled over it while thus obeying the untimely commands of the defendant, he would not have been chargeable with contributory negligence.
   By the Court.—Sedgwick, Ch. J.

The plaintiff, after buying a ticket in a passenger station of the defendant’s railroad, stood outside of the station near its door, upon the platform in front of the station. To the east of the passenger station was a freight station, and in front of it was a platform ; this platform appeared to be used in connection with the freight station. The passenger platform and the freight platform joined each other, and were on the same level. The plaintiff did not live in the place, and had come there to attend a patient as a physician. When he went out of the door of the passenger station, where he bought his ticket, he saw that there was a train of cars with locomotive engine heading in his direction, standing on the track some distance to the east of the passenger platform. He was asked on the trial, whether at the time, he supposed the train would move up and stop opposite the passenger depot. He answered, “ Tes.” There was an objection to the question; the objection being overruled, the defendant excepted. The question was certainly relevant and material. The plaintiff, after he noticed the train standing away from the passenger platform, did not go to it and get upon it, but stood until he was notified that the train was about to start at once on its trip, from the place where it was, without stopping at the passenger platform to take passengers. He was then obliged to hurry and run, instead of taking an ordinary gait. To prove his cause of action, he had to prove that he was without negligence that contributed to the accident. He was bound, in one aspect of the case, to justify to the jury his remaining on the passenger platform, instead of proceeding to the train. The fact that caused him to stand, was that he supposed the train would come to the passenger platform to take passengers. If he did not so suppose, he was without reason for standing, no matter how much the appearance of things might have justified his making the supposition if he had considered their effect. He was a competent witness to the existence of the fact that he supposed as he testified. Of course, he was also bound to show by the testimony in the case, that the appearances, for which the defendants were responsible, justified him in having the supposition. The judge charged, that the plaintiff had a right to suppose that the train would be brought up before the station,” meaning, no doubt, the passenger station. My opinion is, that there was evidence tending to show that the plaintiff was right in this respect, and no evidence tending the other way. On the facts, the plaintiff had a right to rely on the natural and direct impression that would be made by the situation of affairs. He was not bound to know that the defendants had a sufficient reason for not stopping at a passenger station. It might, perhaps, be that on the issue of defendant’s negligence, a jury would say that the fact that if they stopped for a minute or two at the passenger station, the locomotive and its head-light would frighten horses that might be upon a near highway, was a sufficient excuse for not stopping. But on the question of contributory negligence, the plaintiff was justified in relying upon the significance of such things as appeared to him. Now, the meaning of a passenger platform in front of a passenger station, is that there is the place where passengers await the coming and departure of trains. It is common knowledge, that before a departure of a train, it often waits away from the passenger platform for a certain time, and then, ringing the bell, moves up to the passenger platform for the passengers. If the plaintiff had perceived that the train was standing in front of a freight station and platform, that would have been another reason for which defendants would have been responsible for the plaintiff supposing that he had to await at the place for passengers the coming of the train.

The plaintiff stood reading a book by a light that shone from the passenger station. After standing a few minutes, he received notice from the ticket agent that the tiain was about to depart at once from the place where it stood to the east. He looked at the train, and observed signals, that defendant’s witnesses proved were intended for the plaintiff, and that indicated that the train was to leave at once. He started on a walk, then went to a run, on a direct line for the train. He tripped over a box in the way, and was injured severely. In my judgment, the questions of negligence suggested by these facts were properly submitted for determination to a jury, and could not have been considered by the court as concerning matters of law. If the defendants used the freight platform for a passenger platform, when passengers were to go from the latter to the former, and especially in this case, where the jury might find that the defendant’s conductor and engineer invited, in substance, the plaintiff to go on the line of approach that he took, a court could- not say that, as matter of law, the defendant had a right to leave a box upon the platform in the way of the plaintiff. The box had been there for some time. It was argued that it was an act of negligence on plaintiff’s part to run. As to this, there was a disputable question of fact, of whether the plaintiff running instead of walking was not induced by the signals that were given by defendant’s servants, indicating that they wished him to hurry. It was also for the jury to say whether a person of ordinary prudence would think of the possibility or probability of an obstruction being upon the platform, or would have a right to suppose that there was no obstruction in such a place, and it could not be held to be law that it was negligent for a person to run upon a level, unobstructed platform.

Against objection of defendant, plaintiff was allowed to testify that he had been attending, at the place from which he came to the station, a case of childbirth, and that the hurt he received prevented his attending it after that; that he had other patients, whom he could not attend for the same reason; that several patients called upon him for professional advice, whom he could not see for the same reason. There was no effort to make this testimony the ground of any claim for damages for the specific loss of the cases referred to. It was admissible to » show the general character of his business which he lost, as determined by the description of the particulars testified to.

The defendant objected to a question to the plaintiff, “State whether, from your experience as a physician, there is any probability of your suffering in any way hereafter from this injury to your nose ?” The question was competent, as referring to one consideration pertinent to the certainty of future consequences according to reasonable probability, but the answer was favorable to the defendant, as it was that there was no probability, and only a possibility. This tended to limit damages favorably to defendant.

The defendant’s counsel requested the court to charge, that it was the duty of the plaintiff to take notice of the time of the departure of the train, and it was his duty to board the train at a reasonable time before the time of its departure. This was not correct, for it impliedly declared that, as matter of law, it would be negligence for a passenger, ■ in ignorance of the time of departure, to await the usual signals given by those in charge of the train, that the train was about to depart.

Another request was that if the plaintiff remained near a light for the purpose of reading a book, and then at the last moment attempted to board the train when the time was so short that he could not do so in a prudent and careful manner, he was guilty of negligence. This request referred to a contingency, that according to the witnesses for defendant and plaintiff alike, did not exist within the case. It was the fact, that the conductor and engineer in charge of the train were waiting for the plaintiff, and the plaintiff would have safely boarded the train if he had not fallen, and the train took him after the accident. The accident did not happen because of the train starting.

Another request was that the company had a right to make up its train and let it stand in front of any part of the station connected with the station as a starting place, and that it was the duty of the passenger to inquire whether it would stop in front of the station or not. There are several considerations which justified the refusal of the request. It is sufficient to point out that the jury could find on the facts, that the plaintiff did learn that the train was about to start from the place where it had' been standing, and would have safely reached it by running, if the box had not tripped him.

I think that the judgment should be affirmed, with costs.

O’Gorman and Ingraham, JJ., concurred.  