#### Betsy Rosenthal, Respondent, *v.*Troy and New England Railway Company, Appellant.

Third Department,

May 6, 1914.

Railroad — negligence — injury to passenger by stepping from trolley car — failure of company to provide platform on both sides of track — contributory negligence.

Where a passenger on an open trolley car, knowing that at a certain station there was a platform only upon one side of the track, stepped from the car, in broad daylight, on the opposite side of the track, where there was a drop of about thirty inches from the car step to the ground, she is guilty of contributory negligence, as a matter of law, and cannot recover for injuries received upon the ground that the defendant was negligent in not maintaining a platform on both sides of the track.

Appeal by the defendant, Troy and New England Railway Company, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 18th day of January, 1913, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 22d day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.

*P. C.*Dugan, for the appellant.

*John P. Judge,*for the respondent.

Smith, P. J.:

The action is for damages caused, it is claimed, by the negligence of the defendant. The defendant operates a trolley road, single track, between Albia, a suburb of the city of Troy, and Averill Park, Rensselaer county, N. Y. The road is about six miles in length and runs through an open country. Snyder’s station, where the accident occurred, is about midway between Albia and Averill Park. At Snyder’s station there is a platform placed upon the south side óf the track, running some distance along the track, upon which one may alight with perfect safety. There is no platform upon the opposite side of the track, and there is a drop from the car step to the ground of about thirty inches. The plaintiff was thoroughly familiar with the situation. Upon the day in question she was riding *189in an open car, the seats upon which were placed across the car, so that she could get out upon either side. At the time of the accident it was in broad daylight, so that she could see perfectly the existing conditions. When the car stopped, instead of getting out upon the platform side, she chose to get out upon the other side where there was no platform, and in stepping from the car to the ground her foot slipped and she fell. For the injuries sustained by reason of this accident she has recovered a verdict against the trolley company of §500.

The ground of negligence alleged is that a platform was not provided upon both sides of the car." It is alleged that others had gotten off theretofore upon the north side of the car, where there was no platform, and had fallen. Plaintiff in her complaint did not specify as a ground of negligence the failure of the conductor to warn her or to drop a bar upon the north side of the car so as to compel her to get off upon the station side, and the court charged the jury that no negligence could be predicated thereupon.

This judgment can only stand upon the theory that the trolley company is bound to furnish a personal guardian for each individual passenger. If this accident had happened at night, where the situation could not be seen, it might well be claimed that the company was either bound to furnish a safe exit upon both sides of the car; or in some way to warn the passengers that they must get out upon the station side. In broad daylight a passenger of mature age is supposed to exercise a little common sense. With a perfectly safe opportunity to alight upon the station side, when she chose to alight upon the side upon which a platform was not provided she took her chances, and any injury resulting therefrom was due to her own negligence. In my view of the case the plaintiff was guilty of contributory negligence as matter of law, and the judgment should be reversed, with costs, and the complaint should be dismissed, with costs.

All concurred.

Judgment and order reversed on law and facts, with costs, and complaint dismissed, with costs. The finding of fact of which the court disapproves is that the plaintiff was free from contributory negligence.