[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 126
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 127 It is claimed on the part of the appellant that the facts upon which this court based its previous decisions sustaining the denial of the motion for a nonsuit in this case (49 N.Y., 47, and59 N.Y., 352) were changed in some material particulars on the last trial. The statement of the plaintiff on the former trials, that the person by whose direction she alighted from the car was one of the defendant's brakemen, is said to have been disproved on the last trial, and it is argued that that fact is eliminated from the case.
On the last trial the plaintiff testified, as before, that this person was a brakeman, though she could not identify him; and further, that he was the same person who, with the conductor, had called the stations before arriving at Fort Plain; that he opened the door and called Fort Plain station, and that when she went out on the platform of the car he stood on the platform opposite to her, with his hand on the brake; that she did not attempt to alight until he directed her to do so, and he then had his hand on the brake. The denial by both of the brakemen, shown to have been on the train, of the occurrence, as related by the plaintiff, merely created a conflict of testimony which raised a question for the jury. *Page 128
Stress is laid upon the statement of the plaintiff as to the dress of the alleged brakeman, but it must be observed that she testified that she would not like to be positive as to his dress, but thought she knew — thought he had on a blue overcoat, etc. All this was matter for the jury, and was submitted to them in the charge of the court, with the instruction that if the person who gave the direction to the plaintiff was not a brakeman, his advice was entitled to no consideration, and the plaintiff had no right to act upon it. The jury were further instructed to inquire whether at the time there was sufficient motion in the train to render it careless to alight, even in pursuance of the advice of an employe of the defendant, and they were properly charged in that respect.
It is further contended that the evidence on the last trial established that when the plaintiff alighted the train had not reached its stopping place or passed the limits of the station, and, therefore, the defendant was not negligent in not having stopped at that time.
It is conceded by the appellant that the evidence does not show where the eastern terminus of the station was, or where passengers were accustomed to alight; but it is sought to be inferred from the length of the train and the location of the car from which the plaintiff alighted (it being the second from the baggage-car), and from the place where she alighted, that at the time of her so doing the stopping place had not been reached. This was matter of fact, to be inquired into by the jury. From the marks in the snow, testified to by the defendant's witness, it would appear that she alighted opposite to and near the easterly end of the station-house or depot. The train was going east; another passenger (a lame man) had alighted safely immediately before her, and she testifies that she was then told by the brakeman to get off, as the train was not going to halt any longer. At the same time the baggage was being discharged from the train, for the man who was engaged in taking it out and following up the train for that purpose, as it slowly moved to the eastward, testifies that when he turned, after taking out the last piece, he saw her being *Page 129 dragged on the ground towards him. It does not appear that the train made any other stop until after the accident, and after the whole train had passed under the bridge, which was seventy feet or more east of the station, and the rear of the train was, as testified to by one of the witnesses, 100 to 150 feet east of this bridge. The evidence would, in our judgment, have justified the jury in finding that the momentary slowing up or halt of the train, during which these passengers alighted and the baggage was discharged, was intended as the only stoppage for those purposes, and the jury may have so found. Furthermore, on the last trial, the plaintiff testified that, as she was in the act of stepping down from the car, the train gave a jerk which threw her off, when her dress caught. This conforms to the allegation in the complaint. It is argued that on the former trial she did not mention this jerk, but that circumstance affected only the credibility of the witness, and was for the consideration of the jury. The claim that there is no evidence that the jerk was negligent, cannot be sustained. If the jury believed the testimony of the plaintiff it occurred while she was in the act of alighting from the car by direction of an employe of the defendant, and while baggage was being discharged, and we cannot hold, as matter of law, that the jury could not find it negligent suddenly to start or jerk a train while passengers were so alighting.
We are unable to find any change in the facts of the case, which would justify us in holding that the plaintiff was negligent, or that there was no evidence of negligence on the part of the defendant. The question as to the plaintiff's negligence, is substantially the same as when the case was here on the first and second appeals, and was properly submitted to the jury. The evidence on the last trial does not, if the testimony of the plaintiff is credited, render the case more favorable to the defendant, on the question of its negligence, than it was on the former trials.
The length of time which elapsed after the accident, before the development of the injury, presents the most extraordinary feature of this case, and it was the duty of the jury *Page 130 carefully to scrutinize the evidence in that respect. We cannot say, however, that there was no evidence to establish the necessary connection between the abscess, with which the plaintiff was afterwards afflicted, and the injuries received on the occasion in question. Four juries, including the case of W.M. Filer (49 N.Y., 42), have found in favor of the plaintiff on that question. It was fairly submitted to the jury on the last trial; no exception to the competency of the evidence, on that point, has been argued on this appeal, nor was there any objection or exception to the submission of the question to the jury. On the contrary, the court was requested by the defendant's counsel, to instruct the jury, that it must be affirmatively proved, that the great injury which the plaintiff claimed to have resulted, was the necessary consequence of the act of the defendant, and the court so charged. No exception was taken by the defendant to any part of the charge, and we find no legal ground upon which we would be authorized to disturb the verdict.
The judgment must be affirmed.
All concur except CHURCH, Ch. J., and ALLEN, J., taking no part.
Judgment affirmed.