#### George Bellman, Appl’t, *v.*The New York Central and Hudson River Railroad Company, Resp’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed September,*1886.)

1. NEGLIGENCE — RELATION OP CARRIER AND PASSENGER.

The plaintiff, a member of a military organization, went as passenger of the defendant in one of its cars from R. to B., tickets being procured for their return to R. During their stay at B. the car was run upon a siding, and one end of it rested for some distance on a bridge crossing a street below, the car being without the depot ground.

In the evening the car was lighted and the doors unlocked, though no one was left in attendance. The plaintiff and his companions entered the car and took seats therein. The train to which this car was to be attached arrived in the depot late, and on its arrival its conductor entered the car in which plaintiff was seated and requested the occupants to alight and assist him in pushing the car on to the main track in order to attach it to the train. To avoid the danger of getting off between the car and the train the plaintiff stepped down on the other side, and in so doing fell through the bridge to the street below. *Held,*that assuming that the relation of carrier and passenger did not exist at the time the conductor came to the car and took control, it might reasonably be held as a matter of law that such relation was resumed as to those persons holding tickets to R. the moment he ordered the car to be moved. The evidence tended to establish the defendant’s negligence, and it was a question for the jury whether the plaintiff was guilty of contributory negligence. His action in leaving the car at the request of the defendant’s agent could not be said to be altogether voluntary, it is the duty of a conductor to exercise the greatest care for the safety of the passengers.

2. Same — New trial — Error to grant.

The plaintiff having obtained a verdict, a new trial was granted upon the ground that when the plaintiff boarded the car it was outside of the depot grounds, and that there was not sufficient evidence to justify the jury in reaching the conclusion that there was an agreement or consent by the railroad company that the plaintiff might occupy the car in the place where he found it, and that the plaintiff took all the hazard of his conduct in occupying the car before he was invited to do so by the company. *Held,*error, as the plaintiff’s right of recovery is not made to depend upon that question.

An Appeal from an order of the Monroe special term granting the defendant’s motion for a new trial on a case containing exceptions. The action was tried at the Monroe circuit and the plaintiff recovered a verdict of $2,000.

*Baines Bros,*for the appl’t; *Edward Harris*for the resp’t.

Barker, J.

The plaintiff in alighting from one of the defendant’s passenger cars fell through the openings in a bridge over a highway upon which the ear was standing and received severe injuries to his person. He claims that, at that time, he was a passenger on the defendant’s road and rightfully in the car and. that the injuries which he received were caused by the negligence and carelessness of the conductor in charge of the car. The evidence bearing on the questions of fact, which the plaintiff was required under the pleadings to maintain, is undisputed. If from the proofs the jury were justified in reaching the con~ elusion, that the conductor was guilty of negligence which *154caused the accident and the plaintiff himself was not guilty of contributory negligence, then I think the verdict should be sustained, as I am unable to discover any error in the rulings of the learned trial judge, of which the defendant has reason to complain.

The facts may be briefly stated. The village of Brockport is about twenty miles west of Rochester and the line of the defendant’s road passes through both places. The plaintiff resides in Rochester and is a member of a military organization whose head-quarters were in that city where most of the other members also reside. This company had arranged to give a-public entertainment in Brockport. The members were sufficient to fill one ordinary passenger car. One of their number, Mr. Yost, acting as committee man for all, engaged of the defendant passage for all the members of the company from Rochester to Brockport and return. The fare paid was the regular fare for each member of the company, and before leaving Rochester the same was paid and a return ticket was delivered to Mr. Yost for each member of the company including the plaintiff. A car was assigned to the company in which they were carried to Brockport in the forenoon of the day on which the exhibition was to be given. On arriving in Brockport the car was detached from the train and run upon a switch. After the exhibition was over, the members of the company were carried back to Rochester in the same car, which was attached to a passing freight train which left Brockport after midnight. At the latter place there is a depot with the usual safe and convenient accommodations, with waiting'rooms for passengers, and is located about 230 feet east of Main-street, over' which the railroad crosses on a bridge some twelve feet high. ■ In front of the depot the main track passes some twelve feet from the platform. To the south of the main track and seven feet therefrom, there is a side track which crosses the bridge west of the depot and intersects with the main track. In the morning after the members of the company left the car it was switched upon a side track and run to the west of the depot so that the west end of the car for some three or four feet of its length rested upon the trestle of the bridge. There were openings in the bridge at or near the end of the car and no guards in that section of the south side of the bridge, and the outer space of the car was very near, if it did not over-lap, the side of the bridge. The members of the company were guests at a hotel on Main-street, north of the bridge and near the depot, and the exhibition given by them was in a room in the village south of the bridge and the railroad tracks. As early as 10 o’clock in the evening the car was lighted and the doors unlocked, without any person on the part of the railroad company being present and in charge of the same. The depot building was lighted, the waiting rooms open*155ed and the telegraph office was open and the operator present. It was arranged by the railroad company that the military company should return to Rochester that evening in the same passenger car attached to a freight train which passed Brockport soon after the exhibition was over. The car conld be seen, and that it was lighted could also be observed by persons passing along the street under the bridge as well as from the hotel where the plaintiff and his companions were guests. On their way to the hotel and while there, the plaintiff and others observed the location of the car, and that it was lighted. About the time the train was due most of the members, if not all, of the company, including the plaintiff, passed from the hotel on to the platform of the depot and across and up the track to the car and took seats therein. The train was an hour late in arriving at the depot and stopped in front of the same so that the rear car was about opposite of the place where the passenger car stood. At this time the plaintiff was seated near the west end of the passenger car. The conductor of the freight train came to the west end of the passenger car which rested upon the bridge, opened the door and said, so as to be heard by the plaintiff and others “ Boys, come out and give us a shove; shove this car on to the.main track, so I can bitch on.” The plaintiff, immediately arose from his seat, went to the door, and, as he testified, saw the freight train moving on his right hand side, and fearing he might be hurt if he got off on that side of the car he stepped down the steps on the other side and as he stepped off he went through or over the side of the bridge and fell a distance of some twelve feet. The car was moved to the switch and attached to the train.

On the question whether the plaintiff and his companions were permitted by the defendant to occupy the car while it stood upon the switch before the arrival of the freight train, Mr. Yost, the committee man for the company, testified in substance as follows: “ that when I contracted for the transportation it was arranged that the car was to lay there, at Brockport, for us and as soon as we were ready to move we were to take the car; Smith, the agent for the company, said, if I remember right, that the car was at our service and he would telegraph to the baggage man or whoever had charge of the car there at Brockport to hitch us on to the first train that would bring us back to Rochester; he said that there would be a man there who would tell us whenever we were ready to return^ or we should report ourselves to the authority there and that he did notify the agent at the depot that they were ready to move.”

The defendant did not give any evidence upon the trial except as to the nature and extent of the plaintiff’s injuries. I think from this evidence, the jury were justified in the facts that the conductor was guilty of improper conduct and negli*156gence wbieb caused the plaintiff’s injuries and that he was free from any contributory negligence.

The evidence fairly established, and such was the opinion of the trial judge and he so instructed the jury, that the passenger car as it stood upon the side track was outside of the depot grounds. The legal questions presented will be examined as if such was the fact. In determining whether the verdict should stand or not, it may be assumed that the relation of carrier and passenger did not exist at the time the conductor came to the passenger car and took the control and management of the same. But the moment he ordered the car to be moved, I think it may be reasonably and fairly held as matter of law that the relation of carrier and passenger was resumed, as the company intended to carry the persons holding tickets back to Rochester in that car. The conductor made no request that the car be vacated by the passengers and no objection was made to their remaining in their seats while the ear was being moved so that it could be attached to the train. The plaintiff became a passenger as soon as he came to the depot building for the purpose of being carried to his home in Rochester, for which place he had a ticket, and was entitled to the care and protection which law requires carriers of persons to bestow upon their patrons. The question is not whether plaintiff took a seat in the car with or without the consent of the defendant. But the inquiry is, whether at the time he received his injury the conductor had taken charge of the car and the plaintiff as a passenger had placed himself under his care. If the plaintiff had received injuries while passing from the depot building to the car, or while in the car before the conductor assumed control of the car, a very different question would be presented.

The conductor in ordering the car to be moved acted as the agent of the R. R. Company, and the plaintiff did not terminate the relation of carrier and passenger by attempting to assist the conductor as requested. It was the duty of the conductor to know the situation of the place where he asked the passengers to alight, and if it was not safe and secure for them to do so to inform them of the fact. The eviden ee tended to, if it did not conclusively establish, the defendant’s negligence. It was clearly a question for the jury to say whether the plaintiff himself was guilty of any negligence or carelessness which contributed to the injuries which he received. He was invited by the defendant’s, agent to leave the car at the place where he did, and it cannot be said that his action was altogether voluntary. Passengers on board of cars are largely under the direction and control of the conductor, and it is his du,ty to exercise the greatest care and caution in providing for their safety. *Hickey*v. *Railroad Company,*14 Allen, 429; *Sweeny*v. *Railroad Com*pany, 10 Allen, 368; *Hulbert*v. *N. Y. C. R. Co.,*40 N. Y., 145.

*157Ad examination of the exceptions fails to disclose any error of which the defendant can complain.

The learned trial judge granted a new trial, as appears by his opinion printed in the case, for the reason that when the plaintiff boarded the car it was outside of the depot grounds and there was not sufficient evidence to justify the jury in reaching the conclusion that there was an agreement or consent by the railroad company that the plaintiff might occupy the car in the place where he found it, and that the plaintiff took all the hazard of his conduct in occupying the car before he was invited to do so by the company. As already stated, I do not think the plaintiff’s right of recovery is made to depend upon that question.

The order appealed from reversed and anew trial denied with costs.

All concur.