■ This action was begun March 5, 1897, to recover damages for the death of the plaintiff’s intestate, her husband, caused, it is alleged, by the negligence of the defendant.. It was brought to trial November 10,1897, at a Trial Term of this court, which dismissed the complaint on the plaintiff’s opening, with costs. The plaintiff excepted to the decision, and her exception was ordered to be heard by this court in the first instance.
The following facts were stated by the plaintiff’s counsel in his opening, and many of them are alleged in the complaint: George H. Wells, the intestate, resided at Le Roy, N. Y., and on the 4th of January, 1897, purchased a ticket of the defendant entitling him to a passage on its trains from Le Roy to Rochester, N. Y., and return. He reached Rochester at about two o’clock in the afternoon of the day mentioned, and after transacting some business in the city returned to defendant’s passenger station at Rochester at about four o’clock in the afternoon for the purpose of "taking a train to Le Roy, which left the Rochester station at five o’clock- and twenty minutes in the afternoon. He took a seat in the waiting room for passengers, having his ticket entitling him to ride from Rochester to Le Roy in his possession. Before the five-twenty p. m. train came the intestate showed the gateman his ticket and stated where he wished to go, and the gateman told him to sit down and that when his train arrived he would notify him. While sitting in the waiting room it was seen *367by the persons in charge of the station and by two of his friends that he was so ill that he did not recognize his acquaintances, and it was apparent that he was not in his right mind. It was said on the argument that he was occasionally subject to fits of epilepsy, and was afflicted with one at that time. Passengers at this station are admitted to the train shed through a gate in charge of a gateman, who was informed who the intestate was, where he lived, and the train he desired to go out upon, and also that he was not in a condition to care for himself, and the gateman was asked to see that he was put upon the proper train. The train came and departed, but Mr. Wells was not notified by the gateman of its arrival, and when the gateman saw that he was left he told a policeman who was at the station “ that he had forgotten about Mr. Wells, and that evidently he was not in a condition of mind to go on any train, and told him (the policeman) to put him out of the depot, and the policeman took Mr. Wells and led him to the door at the western entrance.” After Mr. Wells was taken from the station by the policeman he wandered around and afterwards was seen on the tracks of the defendant’s road near the train shed, and about six o’clock in the afternoon he was run over and killed by defendant’s east-bound passenger train.
If the foregoing facts, which were stated in the opening, are established on the trial and in nowise explained, they are sufficient to constitute a cause of action.
The relation of carrier and passenger existed between Mr. Wells and the defendant. (Gordon v. Grand Street & Newtown R. R. Co., 40 Barb. 546; Weston v. N. Y. Elevated R. R. Co., 10 J. & S. 156; affd., 73 N. Y. 595; Grimes v. Pennsylvania Co., 36 Fed. Rep. 72; Warren v. Fitchburg R. R. Co., 8 Allen [Mass.], 227; Wood Ry. Law, § 298 ; Elliott R. R. Law, 2460 ; 5 Am. & Eng. Ency. of Law [2d ed.] 488 et seq.)
Mr. Wells being a passenger, the defendant owed him an active duty and was bound to exercise due diligence to care for his safety. A greater duty is imposed upon a carrier of passengers to look out for those incapable of caring for themselves by reason of extreme age, youth or illness than for passengers competent to care for themselves. Whether the condition of Mr. Wells was such that the defendant might have refused to receive him as a passenger is not *368involved in this case, for it did receive him with knowledge of his condition, and the question is whether it exercised due diligence in caring for him. In case-he was found, after he became a passenger, to be too ill to travel with safety, it was the duty of the defendant not to undertake to ■ carry him, hut to put him in a place of safety, or in the custody of some officer of the law authorized to take charge of such persons. This the defendant did not do. It did not inform the policeman of the'intestate’s illness and temporary loss of mental power and place him in his charge, but it simply directed the policeman to put him out of the station. This, under the facts stated in the opening, the defendant had no right to do, arid the court erred in directing that the complaint be dismissed.
The plaintiff’s exception should be sustained and a new trial granted, with costs to abide the event.
All concurred.
Plaintiff’s exceptions sustained and a new trial ordered, with costs to the plaintiff to abide the event. •