#### Julia M. Ferry, Resp’t, *v.*The Manhattan Railway Co., App'lt.1

*(Court of Appeals, Second Division,*

*Filed February 25, 1890.)*

1. Negligence—Elevated railway—-System of signals on starting.

Plaintiff was injured by the starting of an elevated railroad train while she was alighting ,at a station. The signals for starting were transmitted *934from platform to platform by pulls on the bell rope held slack by the different employees stationed on them. Defendant claimed that a passenger had taken hold of the rope and given the signal. On the trial the judge charged the jury that if they found that the train was started by the passenger in the manner he says he did it, then the defendant was not negligent and the plaintiff could not recover, but if on the other hand they found that the train was not started by the passenger in that manner, that-is if he did not give the signal to the brakeman which caused the latter to signal the conductor, then the defendant was negligent, but refused to charge that “there was no proof that there was any vice in the system of communicating signals, and,the jury are not to consider this question.” *Held,*no error, in view of the charge previously given by the court.

2. Same.

The court also refused to charge that “ there is not a particle of evidence that the method of fixing the bell rope was not the best method of fixing it, and the jury are not to take this question into consideration.” *Held,*no error.

Appeal from judgment of the general term of the superior court of the city of New York, affirming judgment entered on a. verdict in favor of the plaintiff.

*Julian T.*Davies, for app’lt; *Benjamin Q. Ditchings,*for resp’t.

1

 Affirming 6 N. Y. State Rep., 821.

Bradley, J.

The plaintiff was one of a party of nine persons who, at One Hundred and Eleventh street, in the city of New York, entered the last one of four cars constituting a train upon the Second Avenue elevated railway, operated by the defendant, and when the train stopped at Fifty-seventh street they proceeded to alight from the car. Six of them had done so, and the plaintiff,, next following them, was about stepping from the car, when the train suddenly started, as some of the witnesses say with a jerk, and she was thrown down and severely injured. She brought this action to recover damages for the injury so received, which she charges was occasioned solely by the negligence of the defendant. It was the duty of the latter to give passengers a reasonable opportunity to leave the train at stations where they wished to alight The conclusion was warranted by the evidence that no fault of the plaintiff contributed to the injury. And as the train and its movement were apparently under the control of the employees of the defendant, the presumption was permitted that the failure to give the plaintiff the opportunity to get from the car before the train started and its consequences to her, were attributable to the negligence of the defendant. *Breen*v. *N. Y. C. & H. R. R. R. Co.,*109 N. Y., 297; 14 N. Y. State Rep., 835. And the burden was cast upon the defendant to repel such presumption. *Bowen*v. *N. Y. C. R. R. Co.,*18 N. Y., 408; *Caldwell*v. *N. J. Steamboat Co.,*47 id., 282. This it sought to do by proving the system and the manner of performing the service of running its trains as applied to the one in question, and by giving evidence which it was claimed tended to show that this accident was not chargeable to any fault in either. This was a train of four cars.

The places for the passengers to depart from it were at the connecting ends of the third and fourth, second and third and first and second cars; that at the latter place was the conductor, and at each of the other places mentioned was a brakeman, whose duties respectively at stations were to open the gates to *935permit the egress and ingress of passengers, and when that was accomplished to close the gates and give signals, which when transmitted to the engineer it was his duty to start the train, and proceed to the next station. This signal was given by means of a bell rope located near the roof ceiling of the cars, and extending from the bell on the engine to the place where the rear brakeman was stationed. The system required the latter, when the getting off and on of passengers at that point was completed at a station, to give the signal to the next forward brakeman, whose duty it was to so hold the rope as not to permit the signal to pass him, and when he closed the gates under his control, to transmit the signal by two pulls of the cord to the conductor, whose duty it was in like manner to receive it, and when he closed the gates under his control, to give the signal to the engineer to start the train. In this instance the signal was given by the brakeman between the second and third cars to the conductor, and by the latter to the engineer, and the train started just as the plaintiff was proceeding to step from the fourth car to the station platform. The brakeman between that and the third car testified that he had then given no signal. And to explain the cause of the signal to the brakeman between the second and third cars evidence was given tending to prove that a passenger standing in the third car, about the time the train stopped, to steady himself caught hold of the bell cord, which may have had the effect of a signal to the brakeman or guard at the front end of that car, and caused its transmission by him to the conductor, and thence to the engineer. The last mentioned brakeman testified that he did receive a signal, which he supposing came from the rear brakeman, transmitted it to the conductor. There was evidence on the part of the plaintiff tending to impeach the credibility, as a witness, of the last mentioned brakeman, which permitted the jury to conclude that his evidence was not entitled to credit. And in view of that question, which was submitted to the jury, the further question as one of fact whether any signal from any source in the rear of his position as guard was received by him, as he testified, was also submitted to them. And in view of the charge as made to them by the trial court they evidently found that his evidence to the effect that he did receive a signal was not true. This was warranted by the evidence.

The defendant’s counsel does not, on this review, complain of the submission of that question of fact to the jury, but does argue that the court erred in the refusal to charge as requested, that “ there was no proof that there was any vice in the system of communicating signals, and the jury are not to consider this question.” Also, that “ there is not a particle of evidence that the method of fixing the bell-rope was not the best method of fixing it, and the jury are not to take this question into consideration.” These propositions had relation to the fact, if so found, that the signal was given by the act of the passenger in taking hold of the rope, which the jury were permitted by the evidence to find When requested to charge those propositions respectively, the court refused except as charged, and exceptions were taken.

*936The court had charged the jury that if they found that the train was started by the passenger in the manner he says he did it, then the defendant was not negligent and the plaintiff could not recover, but if, on the other hand, they found that the train was not started, by the passenger in that manner, that is, if he did not give the-signal to the brakeman, which caused the latter to signal the conductor, then the defendant was negligent. This seems to have fully covered those propositions which the court was so requested to submit to the jury, so far as they had any bearing upon any question presented at the trial. They could have no consideration unless the jury found that the act of the passenger caused a signal to the brakeman which led him to extend it. And the court had distinctly charged the jury that if they so found the fact, the accident was without fault of the defendant and the plaintiff could not recover. This covered the entire purpose and effect which, these propositions could have served or had given to them, and went further in favor of the defendant. So that their finding that the signal was caused by the act of the passenger in taking hold of the bell-cord would close further inquiry by the jury and require-them to find a verdict for the defendant.

The defense rested upon the evidence tending to prove that fact. And the court by the charge gave to the defendant the full benefit of it if the jury so found it. This rendered unimportant the inquiry whether the defendant’s system of service was unobjectionable and the bell cord properly located, or placed where it best could have protection against irregular disturbance and with a view to the safety of passengers. There seems to have been no opportunity possible for the defendant to be prejudiced by the-refusal of the court to charge farther than it had already charged the jury on that subject. It, therefore, is unnecessary to consider the question whether the defendant’s requests should otherwise-have been granted.

As those are the only exceptions urged upon our attention, and as we think they or any of the others are not well taken, the judgment should be affirmed.

All concur, except Haight and Parker, JJ., not sitting.