
    Peter Schurr, App'lt, v. Theodore Houston and Horace Russell, as Receivers of the New York, West Shore and Buffalo Railway Company, Resp'ts.
    . (Superior Court of Buffalo, General Term,
    
    
      Filed July 5,1887.)
    
    1. Negligence—Contributory negligence Question eor the jury— Acting under the advice oe the servai / oe a common carrier.
    Where a passenger is advised by one ( ae servants of the common carrier to get off the train, while in mofa ' tnd in so doing is injured, and the injury is the direct consequence u. such action, the question is one to be submitted to the jury whether the passenger was guilty of contributory negligence and á nonsuit will be improper. The plaintiff by mistake got on an express train of the defendants, which did not stop at the station for which he had purchased his ticket. On taking the ticket the conductor of the train told him. that the train would be slowed down as the station was approached and he could then alight. Held, that whether the plaintiff was negligent in so doing was a question for the jury-
    3. Common carriers—Who are passengers—Eeeect of taring tickets.
    Where a person having purchased his ticket for a certain station, gets on a train which makes no stops there, the conductor by taking and punching his ticket, accepts him as a passenger, regardless of whether or not he was negligent in getting on the wrong train. (Opinion by Hatch, J.)
    On the 30th day of June, 1886, the plaintiff, a resident of Buffalo, started, to use his own phraseology, to go to Clarence, a village about eighteen miles distant, to make a visit. He went to the depot in Buffalo of the New York, West Shore and Buffalo Railway, and paid for and got a ticket to Clarence, and then went out into the yard and found a train standing there ready to go out on the West Shore road. He was not directed to any particular train by anybody, and he made no inquiry as to what trains stopped at the place of his destination. He got on the train standing there, which, in about five minutes afterwards, left the station. At a point in his journey, beyond the limits of Buffalo and before reaching Bowmansville, a place about eight miles from Buffalo, the conductor for the first time came around and looked at his ticket. Upon looking at his ticket the conductor told the plaintiff that he was on the wrong train. The plaintiff asked him if he could st<v the train at Clarence and let him off; the conductor answered that he could not, that the train did not stop until it reached Rochester. The conductor punched the ticket, handed it back, and said to the plaintiff that he would slow up down by the switch on the other side of the depot at Clarence.
    The plaintiff, on Ms direct examination, testified in answer to repeated questions as follows: “ After he told me he could not stop until he got to Rochester, he said he would slow up down there and I could jump off there, right down by the shanty where the switch is.”
    Q. Repeat that?
    A. He said he would not stop until he got to Rochester, but that he would slow up there, and I could jump off „ there, or I should jump off there.
    Q. Where?
    A. Down at the switch by the shanty. He told, me the same thing again. I asked him to stop and he said no. He said we cannot stop this train until we get to Rochester. He was standing by me and he punched my ticket, and after that I asked him to stop and he said no, he would not stop until he got to Rochester. He said we will slow up the other side of the depot, down by the switch at the shanty, and that I should jump off there.
    On his cross examination the plaintiff testified that the conductor “took Ms ticket, punched it, gave it back to him, and said he was on the wrong train.”
    Q„ When he told you that, after that what was said first ?
    A. He told me I was on the wrong train; he said this train does not stop until it gets to Rochester. He said they would slow up at the switch on the other side. I asked Mm if he would stop the train. He said no, this train does not stop until it gets to Rochester. He said they would slow up down by the flag shanty at the switch.
    Q. These were the words he used ?
    A. Tes, sir.
    Q. That was all that was said between you and the conductor from the time you got. on at Buffalo until you jumped off ?
    A. Tes, sir.
    Q. Tou are sure of that ?
    A. Tes, sir.
    Further evidence tended to show that when the train had passed the depot at Clarence it began to slow down; that the plaintiff went out upon the platform at the end of the car, and stepped down upon the lower step, and that when the train had got seven or eight rods, or some other small distance from the switch, holding by the handle on the side of the car the plaintiff let himself off, and on so doing, was thrown down and severely injured.
    
      When the plaintiff rested, the court ordered anon-suit and directed the exceptions to be heard in the first instance at general term,
    
      LeRoy Parker, for pl’ff; George C Greene, for def’t.
   Beckwith, J.

It may be true, as was argued by counsel for defendant, and as the trial judge indicated, that the plaintiff was negligent in getting upon the train without inquiring whether it would stop at the place of his destination; and, on the other hand, it may be the case that the defendant was also negligent in not putting some one there to point out to passengers the trains their tickets entitled them to go upon; but the questions involved in these inquiries are immaterial.

The plaintiff was on the train with his ticket; he was not ordered to get off nor enabled to do so; his ticket was punched by the conductor, which, with no proof as to the object of that act, we may assume was done to prevent its being used again on that route, and the conductor while checking the plaintiff’s ticket, told him that just beyond the depot at Clarence, at about the place where the flagman’s shanty was by the switch, the train would slow up. To my mind those circumstances would indicate that the conductor did not object to his riding on that train, and that when the train should slow up the plaintiff should, or possibly could, jump off. Looking at the ticket and saying that it was the wrong train, but that the train would slow down at the switch near Clarence, were acts indicating that the plaintiff was not rejected as a passenger. At all events the circumstances required a submission of the question to the jury whether he was not accepted as a passenger. Although by the purchase of his ticket at Buffalo* no contract was originally made with the plaintiff to carry him on that train, yet the circumstances referred to, and the conduct of the conductor after examining the ticket, were evidence sufficient for consideration whether the defendant did not assume as to the plaintiff the relation of a carrier, and if it did, the moment that relationship was. taken upon itself by the defendant, the responsibilities of a carrier were also assumed, and even if in consequence thereof the conductor was not bound to stop his train at Clarence to let the plaintiff get off, yet he was bound not. to be a party to an act that would endanger the safety of the plaintiff while a passenger. Edgerton v. The New York and Harlem Railroad Co., 39 N. Y., 227.

And whether the conduct of the conductor was prudent and careful, regard being had to the safety of the passenger in the ptoposed attempt to get off, was a question for the jury. And assuming that it was not negligence, per se, to-let the passenger get off when the train was in motion, the inquiry whether the plaintiff in attempting to alight, under the circumstances, exercised due care himself seem plainly to have presented a question for the jury. It appears that the plaintiff did not look for the conductor before getting off; that the conductor did not come to him; and it does not appear that the conductor desired to aid the passenger in his attempt to leave the train. It does appear that after passing Clarence station the train began to slow up as the conductor told the plaintiff it would; that the plaintiff noticed the fact, went out upon the platform at the end of the car; got down on the lower step and that while the train was slowing down, and when it was within a short distance of the switch, holding by the handle at the side of the car, he let himself off upon the ground, was thrown down and injured.

The evidence, in my opinion, was sufficient to be left to the jury upon the question whether the defendant, in this instance, did not approve and adopt the design to let the passenger off while the train was in motion, and whether the plaintiff was not as skillful and careful in the performance of his part of the undertaking as men ordinarily would be under the same circumstances. It may be noticed that on his cross-examination, in giving again his version of what the conductor said to him, the plaintiff omitted to state that the conductor told him that he could jump off when the train slowed down.

It is urged by the defendant’s counsel, and the trial, judge intimated the same idea, that this final statement of the plaintiff, being least favorable to himself, should be taken as the true version, and that upon such statement the conductor did not in fact direct or authorize the passenger to jump off the train when it should slow down. But it will be observed that by the questions put on cross-examination the attention of the witness was not called particularly to that part of his former statement, and that the question answered was, after the conductor had told him the train did not stop, “What was said first?” It is evident that the witness, in undertaking to repeat his talk with the conductor and undertaking again, if he did so undertake, to tell all that passed between him and the conductor, did still assume that some things he had said before were understood. For instance, in the same answer to defendant’s counsel he testifies: “He said this train does not stop until it gets to Rochester. He said they would slow up at the switch on the other side.” Did the witness mean or intend to say that the conductor meant on the other side of the Genesee river. The plaintiff having three times on his direct _ examination positively stated that the conductor told him he_ could jump off, although he omits those words in his version given on the cross-examination, yet, taken in connection with the peculiar character of the question put on the cross-examination, it was for the jury to say what the witness meant without any rule of interpretation from the court. The whole testimony did not warrant the application of the rule that his last statement should be the exclusive one. It would be unsafe to let the decision of on issue on trial before a jury run into a process of mere technical criticism of words. The jury know what the witnesses mean. Besides, even upon his statement made on the cross-examination, it would seem probable that the conductor meant that he could get off there. He punched his ticket, and said his train did not stop there, but it would slow down at the switch near there. To my mind, that would signify that it would at that time be practicable to get off; but whether the words that he would slow up at the switch would mean that to me or not, it should at least have been submitted to the jury to say whether they meant anything or not.

The plaintiff’s counsel took an exception to a ruling by the court excluding the plaintiff’s offer to show that after the accident the train was stopped, and the conductor and others came back to the spot where the plaintiff was lying on the ground, and that there and then the conductor admitted that he had told the plaintiff that he could jump off there. It is hardly necessary to pass upon the question in the view I take that upon the remaining evidence there was a case for the jury. Nevertheless it may be said that upon the authority of the luminous opinion delivered by Earl, J., in Wadele v. N. Y. C. & H. R. R. R. Co. (95 N. Y., 274), the ruling of the court» seems entirely correct. ’

The non-suit must be set aside and a new trial granted, costs to abide the event.

Titus, J.

This is a motion for a new trial on exceptions ordered to be heard at the general term in the first instance.

At the close of the plaintiff’s case the defendant moved for a non-suit on the ground .that the plaintiff was guilty of negligence, and that there was no evidence upon the question of defendant’s negligence producing the injury, and on the further ground that the plaintiff did not get off the train at the place indicated by the conductor.

I think the facts in this case should have been submitted to the jury, both upon the question of negligence of the defendant, and of the contributory negligence of the plaintiff.

It appears that on the 30th day of June, 1886, the plaintiff started to go to Clarence on the line of the defendant’s railroad to make a visit. He went in the defendant’s depot, purchased a ticket for Clarence, and went out into the yard where the train was, and got on the train, which lie supposed was the right one, and stopped at Clarence. Ho other train was there, and nobody directed him what train to take, or told him that the train did not stop at Clarence. After the train had passed East Buffalo the conductor came around, punched his ticket, and informed him that the train did not stop at Clarence, and would not stop until it reached Rochester. He asked the conductor to stop the train at Clarence and let him off. The conductor said he could not stop the train at Clarence, but they would slow down at the switch and he could or should get off. When the train reached Clarence the plaintiff went out on the platform, and got down on the lower step. The train slowed down, and when the engine was “right 'by the switch-house ” he took hold of the iron bar on the rear end of the car and swung himself backwards from the direction in which the train was moving, and put his right foot on the ground and jumped; in doing which he received the injury complained of. It further appears that the train was an express train, and does not make regular stops at Clarence, but of this fact the defendant had no knowledge.

It was suggested on the trial that the plaintiff was guilty of negligence in getting on to this train without making inquiry as to whether the train stopped at Clarence. He bought his ticket at the office in the depot; this was the only tram standing there, and.he might very properly suppose that if the defendant sold him a ticket, while this was the only train in waiting, that it was the train for him to take; or if not, that some one of the defendant’s employees would indicate that fact to him. But whether or not it was negligence, under the circumstances, for the plaintiff to get upon this train, after he was once on, and the train was under way, the defendant had no right to advise him to get off while the train was in motion; and if he acted on such advice, believing from what the conductor said that he could safely do so, and was injured, then the defendant would be guilty of negligence, and the plaintiff’s negligence, if any there was, in getting on the train at the depot, cannot avail the defendant to shield it from its subsequent negligent conduct; nor can the plaintiff be said, by this remote act, to have contributed to the injury Healey v The Dry Dock R. Co., 46 N. Y. Supr. Ct.,473, Clark v. N Y., L. E. and W. R. R. Co., 40 Hun, 606.

Under the rule laid down by the court of appeals, the defendant was guilty of negligence in advising the plaintiff to get off from the train while in motion. Filer v. N. Y. C. R. R. Co., 49 N. Y., 47.

If the conductor wanted the plaintiff to get off he should have brought his train to a stop, and should not, by his advice or suggestion, have induced him to get off while the train was. moving, although he had slowed down for that or some other purpose.

It seems the plaintiff pursued the usual course in alighting. He swung his body back to overcome the momentum of the train, holding on to the supports, and letting himself down, so that his right foot could touch the ground before-letting go.

It is not clear what other course he could have adopted to insure greater safety. Although the learned judge who tried the cause seemed to think he should have jumped forward, I think the rule is well settled that the jury should have been allowed to pass upon all of the facts, and determine whether under the circumstances the plaintiff acted in a prudent and proper manner in getting off from the train, and whether, under the circumstances, it was negligence in the plaintiff to get off at all while the train was in motion. Morrison v. The Frie R. R. Co., 56 N. Y., 302; Bucher v. N. Y. C. and H. R. R. R. Co., 98 id., 128.

It is claimed by the plaintiff, and the evidence tends to show, that the plaintiff left the train just as the engine was opposite the switch indicated by the conductor to the plaintiff, and whether he left the train at the precise spot indicated to him, was properly for the jury to determine.

It follows that the order granting a nonsuit should be set aside, and a new trial granted, .with costs to abide the event of the action. _  