#### Cora Chase, Resp’t, *v.*The Jamestown Street Railway Co., App’lt.

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

*Filed June 2, 1891.)*

1. Railroads—Negligence.

The obligation of a carrier of passengers, to exercise the utmost diligence possible to secure the safe transportation of the passenger, and to that end to furnish carriages of the most approved construction and keep them in repair, applies as well to means and appliances for discharging passengers as for transporting them. If the wheel box or its guard is out of repair in such manner as to be liable to trip or throw down a passenger alighting from the car, that fact, of itself, constitutes negligence.

2. Same.

Plaintiff, while alighting from defendant’s open car, was thrown down and injured by her dress catching in the broken guard of a wheel box which projected from under the seat. She was following other passengers, and did not know of, or have suspicion of, this defect. *Held,*that it was not error to refuse to charge that it was contributory negligence, as matter of law, for plaintiff to fail to take hold of the arms at the end of the seats.

3. Same—Evidence.

In an action for such injuries, evidence of the defect at a time previous to the plaintiff’s accident, is competent to show defendant’s negligence in not remedying it, and evidence of previous accidents from the same cause is competent, to show the character of the defect.

Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying the defendant’s motion for a new trial, made on the minutes of the court, at the Cattaraugus circuit, May, 1890.

*C. R.*Lockwood, for app’lt; *F. W.*Stevens, for resp’t.

Dwight, P. J.

The action was for a personal injury sustained by the plaintiff while a passenger on one of the cars of the defendant, caused, as alleged, by the negligence of the defendant in permitting the car to be out of repair.

The car was an open one with seats running across, and its floor extending over the wheels, which projected through the floor, and were guarded by sheet-iron boxes, or wheel houses, as they were called, located mainly under the seat, but which projected slightly into the passage between the two seats. These guards were furnished with a flange of sheet-iron, extending around the bottom, through which the screws passed which fastened them to the floor. The evidence tended to show that the flange on one *955of these boxes had become loosened and projected from under the seat an inch or two above the floor, presenting a sharp corner of sheet-iron liable to catch the skirts of ladies’ dresses as they passed. At the time of the accident, as the plaintiff was attempting to alight from the car, the skirt of her dress caught on the corner of the loosened flange and she was thrown forward onto the ground, and sustained the injury of which she complains.

The defendant was subject to the strict rule which fixes the liability of a carrier of passengers for hire, viz., that by its contract it is bound to use the utmost diligence possible to secure the safe transportation of the passenger; and to that end, to furnish carriages of the most approved construction, and to keep them in perfect repair, so far as human skill and foresight can provide. This obligation extends as well -to means and appliances for discharging passengers as for transporting them. So that if the wheel-box or guard in question was out of repair in such manner as to be liable to trip or throw down a passenger alighting from the car, that fact, of itself, constituted negligence which would, so far, charge the defendant. The evidence upon that question was quite sufficient to warrant the verdict of the jury. It was substantially admitted that the defect in question existed and that it was known to the person in charge of the car; and the resources of human skill and foresight had plainly not been exhausted in the effort to repair it. The proposition of counsel in a request to charge “that the measure of defendant’s duty was that of ordinary and reasonable care,” was opposed to the elementary rule of liability applicable to carriers of passengers for hire. Whether that defect was the cause of the accident described was also a question properly submitted to the jury, and their verdict in that respect was well supported by the evidence. It only remained to make a case of the absence of contributory negligence to entitle the plaintiff to a verdict; and in that respect, again, it is very clear that the court could not have withheld the case from the jury. The plaintiff was passing out, in the ordinary manner, through the passage between the seats, following other passengers who sat nearer the exit than she did, not knowing of or suspecting a trap in the floor of the car and not required to look for one, when her dress was caught and she was thrown forward in the manner described. The duty of the passenger to exercise ordinary and reasonable care for her own safety was well defined by the court to the jury, and the rule of non-liability of the defendant in case of the want of such care on the part of the plaintiff was correctly stated. It seems there were arms attached to the ends of the seats between which the passengers passed out of the car, and some evidence was given tending to show that she did not take hold of either of those arms. as she stepped down from the floor of the car to the step which ran beneath.

The evidence on this question was carefully and properly submitted to the jury, and they were instructed to say whether, in view of the whole situation as described, the plaintiff was guilty of negligence on her own part which contributed to produce the accident. This was all that the court was required to do. *956It properly declined to hold, as matter of law, and to charge the jury that a failure of the plaintiff to take hold of the arm of the "seat, was contributory negligence. The case, like most cases of this character, was one in which the inference of contributory negligence was to be drawn by the jury, if at all.

The motion for a nonsuit on the ground of the non-joinder of the plaintiff’s husband, was properly denied. The fact of coverture appeared on the face of the complaint, and the objection, if any, on that ground was waived because not raised by demurrer or answer. Code Civ. Pro., §§ 488, 499.

None of the defendant’s exceptions to rulings on questions of evidence were necessarily fatal to the verdict. The evidence given by several persons as to the existence of the defect in the car at a time prior to that of the plaintiff’s accident, was competent to show the negligence of the defendant in not taking effectual steps to remedy it; and the evidence of previous accidents from the same cause was competent as illustrating the character of the defect. Quinlan v. *Utica,*74 N. Y., 603 ; *Pomfrey v. Saratoga Springs,*104 id., 469 ; 5 N. Y. State Rep., 802 *; District of Columbia*v. *Armes,*107 U. S., 519.

The question of the defendant to Dr. Towle, a physician, whether the plaintiff’s mother was afflicted with cancer, was properly excluded, because it was not confined to personal knowledge of the witness acquired otherwise than when acting in a professional capacity; but the fact, if it was competent at all, was afterterwards established by other evidence, and was not disputed. The opinion of Drs. Towle and Fisher as to the probable effect of the plaintiff’s fall, was competent as that of medical experts. The testimony of a witness offered to prove a declaration of plaintiff’s witness, Mrs. Lawson, was properly excluded, because it did not tend to contradict any fact to which the witness, Mrs. Lawson, had testified, and which was material to the issues.

In short, without further particularizing, we find no exception in the case which points to error committed on the trial. We think the law of the case was properly expounded to the jury, and that the verdict was well supported by competent evidence.

The judgment and order appealed from must be affirmed.

Macomber, J., concurs.