#### CHILDS v. NEW YORK, O. & W. RY. CO.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Damages—Proximate and Remote Cause.

In an action against a railroad company for causing plaintiff to alight in the evening at a- station two miles from her destination, no recovery can be had for injuries to plaintiff’s health, caused by walking from such station to her destination, where she could have discovered a place to stay over night had she inquired, and she knew that her health was such that she might be seriously affected by the walk.

Appeal from circuit court, Ulster county.

Action by Henrietta Childs against the New York, Ontario & Western Railway Company to recover damages for causing plaintiff to alight from defendant’s train at a station other than that for which she claimed to have a ticket. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

William Vanamee, for appellant.

Linson *&*Van Buren (John J. Linson, of counsel), for respondent.

HERRICK, J.

' On the Sd day of July, 1890, the plaintiff, a widow lady, in company with her father, her little child, and a friend, named Miss Smith, started from Middletown, a station on the defendant’s railroad, to go to Purdy’s, another station on defendant’s road, there to spend the 4th of July with a relative of the plaintiff, who lived in that vicinity. Miss Smith purchased the tickets for herself and the plaintiff. When the train reached Fair Oaks, a station about two miles distant from Purdy’s, the trainman, by some unexplained blunder, announced it as Purdy’s, and the plaintiff and her party, supposing it to be their destination, got out of the train. Almost immediately upon alighting her father discovered the mistake, and said to the trainman, “This is Fair Oaks,” and that they should not be left there. The trainman said that they had moved the station, and that it was Purdy’s, and the train immediately moved on. Fair Oaks, it seems, is what is called a “milk station.” There was a small building there, partially open at the sides, in which milk cans were deposited. About 50 feet distant is a feed store, and a short distance from the feed store, and next to it, is a building described as an “office.” The proprietor of the feed store seems to have acted as the agent of the defendant at that place, selling tickets for passage over defendant’s road, and his office being used as the waiting room. At a distance'of between 200 and 250 feet from the station there was a farm house, and at a distance of from 400 to 500 feet from the station was an hotel. At the time'that the plaintiff and her party alighted at.the station there was present a brother of the proprietor of the feed store, named Wallace, who had charge of it and the defendant’s business at that station, in his brother’s absence, and the son of the hotel proprietor. It was about 7 o’clock in the evening when they alighted from the train, and it *895was raining, a thunder storm passing over the place at the time, After some little consultation the plaintiff and her party proceeded to walk to Purdy’s, by way of the railroad tracks, and they arrived at her uncle’s house at about 9 o’clock in the evening. The plaintiff had been afflicted for a number of years with some uterine difficulty, which, it was testified to, affected her ankles, so that at intervals, for a period of about fifteen years before this occurrence, she had been compelled to wear steel braces for her ankles, but had not been wearing them for about two years prior to the time in question. The walk from Fair Oaks to Purdy’s, and her exposure to the rain during such journey, prostrated the plaintiff for the time being, and brought on a recurrence of her old difficulties, from which she had not recovered at the time of the trial. Upon the trial, defendant produced evidence to the effect that before plaintiff started to walk from Fair Oaks to Purdy’s, Wallace called the attention of the party to the fact that there was an hotel there where they could get accommodations for the night, which were declined, and that then he informed them that he had a team there, and would take them to their destination, which was also declined; and also testimony that, as they started on their walk, the proprietor of the farm house called to them, and offered to take charge of them over night, and take them to their destination in the morning, without charge. The plaintiff denied that there was any offer to take her to her destination, denied that she was informed of the fact that there was an hotel there, where she could be accommodated, and ■denied that she heard the farmer offer to take charge of them over night. From the manner in which the court submitted the case to the jury, it must be assumed that the jury found in favor of the plaintiff upon those questions. The plaintiff testified that she did not know of the existence of any hotel there, or of any farm house, and that she made no inquiries and no effort to ascertain whether there was any place where she could be taken care of over night; but, without making any inquiries for or effort to secure lodgings for the night, started out on foot for Purdy’s. The court charged the jury:

“In view of the fact that there was here at this station this hotel and this house, it is for you to say whether she did and the party did that which was prudent under the circumstances, if they made up their minds to go on to Purdy’s in that rain, without stopping at least to inquire whether there was near at hand a place where they could be protected over night. That subject is one that the court has refused to pass upon as a matter of law, and one which he submits to the jury, and which you are to carefully consider, weigh, and pass upon. And if you find that the plaintiff acted prudently in that which she did, if you find that she was not neglectful of herself and her condition in failing to make these inquiries touching a place of rest and shelter ■during the storm and the night,—if you reach that conclusion,—if you reach that conclusion that under all the information which she had and which was in her possession, and all the circumstances surrounding it, she was fully justified, as a prudent person, in taking the course which she did in going on to Purdy’s, then she is entitled to recover at your hands such a sum, if any, in damages' as you think she may have suffered by reason of taking that trip.”

This portion of the charge was excepted to by the defendant, and exceptions were also taken during the trial to the reception of evi*896dence, raising the same questions,—-that is, as to whether the plaintiff was entitled to recover damages for the injuries sustained by her by her walk from Fair Oaks to Purdy’s and her exposure to the rain during such walk.

The plaintiff relies upon the case of Ehrgott v. Mayor, etc., 96 N. Y. 264, to sustain the proposition contended for by her. In that case:

“The jury found that the diseases from which the plaintiff suffered were the direct result both of the accident [the breaking of the axle, and his falling over the dashboard] and the subsequent exposure, and that the effect of the exposure was simply to increase and aggravate the injury received from the accident.”

“The jury found that the plaintiff was blameless for the subsequent exposure, and therefore, so far as that operated in causing injury to the plaintiff, it was a cause for which he was not responsible. There were, according to the finding of the jury, two causes operating to produce plaintiff’s injuries, each of which was essential to produce the results. The accident without the exposure, and the exposure without the accident, would not have caused them.”

And the opinion proceeds:

“When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless, without its operation, the accident would not have happened. Here, as I understand the findings of the jury, the plaintiff’s injuries would not have been suffered but for the strain and shock of the accident. While both causes were proximate, that was the nearest and most direct. Still further, it was certainly impossible for the plaintiff to prove or for the jury to find how much of the injury was due to either cause alone. It was wholly impossible to apportion the damage between the two causes.”

In this case the plaintiff arrived at Fair Oaks station safe and sound. She suffered no physical injury in alighting at the wrong station. When she started on her walk from Fair Oaks to Purdy’s, nothing had been done by the defendant which rendered, her physical system unusually susceptible to injury, either from the walk or from exposure to the rain during the walk, wherein it essentially differs from the Ehrgott Case. Again, in that case there were two concurrent causes,—the injuries received by the accident and the subsequent exposure, naturally under the circumstances resulting from that accident. In this case there is only one; and it seems to me that the only question that arises is as to whether the plaintiff’s walk, and the exposure which caused her sickness, were the natural consequences of defendant’s fault in leaving her at the wrong station. The plaintiff undoubtedly has the right to recover all damages naturally resulting from the defendant’s fault, and for any discomfort or inconvenience suffered by her therefrom; but there was also a duty resting upon her to conduct herself prudently in the situation in which she had been placed, so that those discomforts and inconveniences should not be unnecessarily increased, and to so conduct herself that no danger should be unnecessarily run by her. If she acted imprudently, and as a result of such imprudence suffered injury, then she is not entitled to recover for the injury resulting from her own imprudent action. The fact that the defendant had *897placed her in .a position where she had an opportunity to act imprudently does not justify her in so acting.

While it is a question for the jury to determine what are the natural consequences of the defendant’s fault, and they are to determine whether she acted prudently in the situation in which she was placed, or whether by her own imprudence she brought upon herself the injury from which she is suffering, still in reaching their conclusions upon such questions there are limitations to their power in that respect. While they have the right to determine whether the injury from which the person is suffering is the natural result.' of an accident that is not necessarily sufficient, they must find that the accident is the immediate or proximate cause of such injury.

The question of contributory negligence is one for the jury to pass upon. Still they are governed by certain rules of law in that respect to guide their action; as, for instance, a person approaching a railroad crossing must look and listen for approaching trains, and the jury are not at liberty to say that he is not guilty of contributory negligence in the absence of evidence that he has taken such precautions. So, in determining the question of prudence it must not be a mere arbitrary determination on their part, but one limited and guided by law; and it seems to me that the court erred in refusing to find as a matter of law that it was the plaintiff’s duty, under all the circumstances, to inquire whether there was near at hand a place where she could be protected over night, before she started on what was to her a dangerous journey by foot; and submitting the question of prudence without limitation or restriction to the jury. . The plaintiff, as we have seen, had been suffering from physical disability at intervals for about 15 years. She knew that any undue exercise or exposure would bring on a recurrence of such difficulty. She is left at a station in the evening, during a rain storm, some two miles distant from her destination; and it seems to me that, as a matter of law, it was her duty, before she undertook to walk there, with her precarious health, and in a storm, to make some inquiries whether she could procure any conveyance there, and if not, whether there was any convenient place in the vicinity where she could be cared for over night; and that, failing to make such inquiries, and blindly and heedlessly undergoing the fatigue of the journey by foot, and the exposure to the elements, when there were places near at hand where she could have been cared for during the night, she is not entitled to recover damages for the injuries resulting from such exposure. The judgment should therefore be reversed, and a new trial granted, costs to abide the event.

PUTNAM, J., concurs. MAYHAM, P. J., concurs in result.