Murphy v. Rome, Watertown & Ogdensburg R. R.

32 N.Y. St. Rep. 381

Opinion

Hardin, P. J.

Carefully and cautiously the trial judge laid down the rules of law applicable to the principal questions presented by the evidence in this case. He kept carefully within the principles laid down by the court of appeals (second division) in McDonald v. Long Island Railroad Company, 27 N. Y. State Rep., 481; in that'case it was held, viz. : “It is the duty of a railroad company to give passengers a reasonable opportunity to leave its trains at station where it stops, and reasonable diligence on the part of its passengers is also required; a passenger has the right to assume that he will have reasonable opportunity to get off the train before it is started.”

We are satisfied upon a careful perusal of the evidence that it required that the trial judge should submit to the jury the question of whether or not the plaintiff was guilty of negligence which contributed to the injury. Suiter v. N. Y., L. E. & W. R. R. Co., 7 N. Y. State Rep., 687.

The language of Ruger, Ch. J., in Parsons v. The N. Y. C. & H. R. R. R. Co., 113 N.Y., 364; 22 N.Y. State Rep., 697, is pertinent and applicable; he says: “ The question is, whether the injured party, under all of the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. This rule must in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury. We think that the jury could properly find that the deceased did, under the circumstances of this action, exercise such care and caution as exempted him from the imputation of negligence.’’

The learned counsel for the appellant has brought in juxtaposition in his points the evidence which he supposes the plaintiff gave on the former trial and the evidence which she gave upon the trial now before us, and because of the difference found in the evidence of the plaintiff on the two occasions he argues that it “ should of itself utter a discredit to the second version.” Such an argument was a proper one to press upon the attention of the jury; it cannot, however, be allowed to persuade us to overturn the verdict. It was for the jury to determine what credence should be given to the plaintiff’s evidence as it appeared upon the trial now before us.

In Cleveland v. New Jersey Steamboat Co., 25 N. Y. State Rep., 666, a somewhat similar question was considered by this court, .and we there held, viz.: “ The mere fact that there are some contradictions in plaintiff’s testimony when compared with that given by him on a former trial does not, as matter of law, discredit him as a witness.”

We think the evidence abundantly supports the verdict of the jury in finding that the plaintiff was not guilty of contributory negligence, and in finding that the defendant was guilty of negligence which caused the injuries which the plaintiff received on the occasion when she attempted to alight from the passenger train of the defendant at Felts Mills; and that the case properly falls within the principles laid down in McDonald v. Long Island Railroad Co., supra.

Judgment and order affirmed, with costs.

Mabtin and Mebwin, JJ., concur.