This action was first brought by Frank Watson and wife to recover damages for injuries alleged to have been received by her while entering the car of appellant as a passenger.
The petition stated facts on which both husband and wife sought a recovery, and there is nothing in the petition which characterizes the action as one brought to recover in the separate right of the wife. The petition was demurred to on the ground of misjoinder of parties, and this was sustained, but by trial amendment the name of the wife was dropped from the case as a party.
It is claimed that after this was done the cause should have been dismissed, and more than one year then having elapsed after the injury it is claimed that the defense of limitation should have been sustained.
The petition set up facts that authorized a recovery in the right of the community, and there was no intimation of desire or intention to recover in the separate right of the wife; and while the wife was an unnecessary or even improper party, when her name was stricken from the -case as a plaintiff we see no reason why the husband might not prosecute the cause to final judgment as though the wife had never been joined. The cause of action, as before said, was one in favor of the community, and no other or different cause of action was set up from the inception of the cause, and the action having been brought within one year after the injury was received the defense of limitation was properly overruled.
The petition stated a good cause of action and did not develop a case *634in which it appeared that the injury to Mrs. Watson was caused by the contributory negligence of herself or husband, and in such case it rested with appellant to allege that the injury was so caused if it desired to rely upon such a defense.
The other assignments necessary further to consider in effect urge that the evidence was insufficient to sustain the verdict. It appears that appellee and wife desired passage on appellant’s train from Buffalo to Marquez, a distance of about twenty miles, and to secure this bought tickets. When the train reached Buffalo, where it made but a very short stay, appellee and his wife entered the car of appellant, but in doing this the evidence justifies the holding that the wife of appellee was seriously injured.
There seems to have been no platform or other arrangement made to' enable passengers with ease to enter the cars, which made it necessary on the particular occasion that Mrs. Watson should reach the car step from the ground, and between the lower step of the car and the ground the distance is shown to.have been from thirty to thirty-six inches.
Some assistance seems to have been given to. Mrs. Watson by the employes of appellant, but to enter the car it was necessary she should step from the ground to the lower step of the car without any intervening foot rest. At the time she was in pregnancy advanced about two months, and received such injury that on the arrival of the train at Jewett, an intermediate station, it was found necessary to remove her from the train for medical attention. The physician who there treated her stated fully the nature of her injuries, and that “had she gone on to Marquez from Jewett (12 miles) in the condition I found her on June 19, 1887, the chances would have been against her life. In all probability the injuries I found her suffering with would have proved fatal.”
The evidence further shows that women had frequently entered the train at Buffalo in the manner Mrs. Watson did without injury, and Mrs. Watson had frequently entered the cars at Buffalo, but on these occasions a step box was usually if not always furnished to make the ascent ebsy and safe.
It is shown that Mrs. Watson used due care in entering the car with the means provided; that she was not negligent unless the attempt to enter the car at all with the means furnished was negligence.
There is no claim that her injuries were not received in entering the. car, nor that they were not of such character as to authorize the damages, awarded, but it is claimed that the attempt to enter the car with the facilities furnished by appellant was such contributory negligence as must, defeat a recovery.
Such a proposition coming from appellant through whose servants she was invited to attempt to enter the car by the use of the means furnished,, and so in the hurry requisite in boarding a train that stopped but a brief *635period to enable passengers to enter the cars, conies without much to recommend it to favorable consideration.
The jury were very clearly instructed as to the degree of care which should have been used by each party, and as to the effect contributory negligence on the part of appellee or his wife would have upon his right to recover. When a passenger has carefully used the means provided by the carrier to enter its cars at a regular station the danger of attempting to enter would have to be very apparent, even to a person without experience in such matters, to justify this court in setting aside a judgment entered on the finding of a jury under a proper charge that the passenger was not guilty of contributory negligence.
Ho facts are shown in this case that would justify such action, and the judgment of the court below must be affirmed.
Affirmed.
Opinion February 8, 1889.