
    Gilbert Newton, Resp’t, v. Central Vermont Railroad Company, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 27, 1894.)
    
    
      1. Negligence—Question eor jury.
    It is a question of fact for the jury whether failure to have in place a chain across the end of the rear platform of a passenger car, is negligence. ’ .' "
    2. Same.
    Whether the sudden jerking of a car in a mixed train, while it is slowing up at a station, is the result of negligence, is also a question for the jury.
    3. Same.
    So, whether the intoxication of a passenger, who is injured by falling from a car platform, contributed to his injury, is a question for the jury.
    4. Same—Contributory
    It is not negligence for a passenger to leave his seat in a car, after the conductor has called the name of the station.
    
      “ Appeal from a judgment, entered on a verdict in favor of plaintiff.
    
      Louis Ilasbrouch, for app’lt; Badger & Lde, for resp’t.
   Mayham, P. J.

The plaintiff was a passenger on one of the defendant’s passenger cars, for which he held a passenger ticket from Marion to Bombay, two stations on defendant’s railroad. As the train approached Bombay the conductor announced the name of the station, and the train slowed up, and the plaintiff, with other passengers, started for the door of the car to alight. On reaching the door, the evidence tends to prove that the coach was suddenly jerked, and the plaintiff precipitated across the platform between the ends of the guard rails, between the ends of which the chain which is usually extended from the end of one railing or guard to the other was at that time unhooked, and plaintiff fell between the passenger car on which he was riding, and a freight car which was hauled in that train, and was injured.

Two questions are presented in this, as in most appeals of this character: First. Did the plaintiff, on the trial, prove any negligent act or omission on the part of the defendant for which the jury were justified in finding it liable to the plaintiff for the injury complained of? Second. Did the plaintiff, by the proof, establish his freedom from contributory negligence ? The evidence relied upon by the plaintiff to establish negligence of the defendant was the proof that no chain or bar was placed between the ends of the guard or railing on the outer edge of the platform across the passage-way from one car to another, to prevent the plaintiff and other passengers from falling between the cars in case of any sudden, and unexpected movement of this passenger coach while passengers were on the platform for the purpose of alighting from the train. It is a well known fact that passenger coaches, where no other means of protection are provided to prevent passengers from falling between cars through the space between the railings or guards at the-outer edge of the platform, have chains, which may be extended from one rail to the other, thus forming barriers, as a prevention against such accidents. We think that the failure of the defendant to have in place such barriers at the time of this accident was a fact from which the jury might impute negligence to the defendant. Fiero v. N. Y. C. & H. R. Railroad Co., 71 Hun, 213; 54 St. Rep. 373. It was, we think, a question of fact for the jury, under the circumstances of this case, and their determination upon that question should not be disturbed on this appeal!

It is also insisted that there was a sudden jerk or movement of the cars after the conductor had invited the passengers to alight by calling out the name of the station, which precipitated this accident, for which the defendant is responsible. On the part of the defendant it is insisted that that movement was necessarily incident to the movement of a mixed train composed of freight and passenger cars, such as the train in question, and that the defendant is not responsible for such unavoidable incident in this case. That, too, we think, under the circumstances of this case, was a question for the jufy, and was properly left to them for determination. The jury having found for the plaintiff, there is sufficient evidence in the case to uphold their verdict. Curry v. Gleason,, 71 Hun, 613; 54 St. Rep. 88; Millott v. N. Y. & N. E. R. R. Co., 46 St. Rep. 145; 19 N. Y. Supp. 122.

But it is insisted on the part of the defendant that the plaintiff failed to establish freedom from contributory negligence, and that the evidence of the intoxication of the plaintiff was of itself proof of contributory negligence, which should preclude him from a recovery in this case. That question having been submitted to the jury under proper instructions from the court, we do not see how their determination can be disturbed on this appeal. We cannot hold that the bare fact of intoxication, as proved upon this trial, is evidence of negligence per,- se, which contributed to the accident ; and we think it was properly submitted to the jury by the learned trial judge, for them to determine whether or not it con-ti’ibuted to the injury complained of.

It is also urged that as the plaintiff left his seat while the train was in motion, he, by that act, was guilty of contributory negligence. It has been frequently held that an attempt to board or alight from a moving train is negligence per se. But the evidence' in this case only discloses that the plaintiff arose from his seat, and was moving towards the door, but was not alighting from the car. We cannot hold that what he did in this case in moving towards the door of the car after the name of the station was announced by the conductor was, as a matter of law, such negligence as would preclude a recovery.

It is also insisted that the judge erred in his charge to the jury, and that for that this judgment should be reversed. The only exception taken by the defendant to the charge was to his refusal to charge, as requested by the defendant, on the question of plaintiff’s intoxication. We think the judge’s refusal to charge as requested, and his qualification of such refusal, were both correct. The judgment should, upon all the questions raised, be affirmed.

Judgment affirmed, with costs.

All concur.  