On the 14th day of February, 1898, the plaintiff boarded one of the defendant’s cars at Third avenue and Seventy-third street. Upon the trial she testified that when she got to Twenty-eighth street she signaled to the conductor to stop; that the car came to a full stop at Twenty-seventh street; and that her daughter who was with her got off first. The plaintiff then took hold of the handle of the car and as she was getting off the car started forward and she was thrown to the ground and injured. At the time the car started the conductor was inside of the car, and there was evidence that the usual signal was given, and immediately the car started. .
*317On behalf of the defendant the conductor testified that he gave the signal to stop the car at Twenty-seventh street, in answer to the request of the plaintiff; that the car stopped; that he was inside of the car collecting fares; that he saw the plaintiff’s daughter get off the car; that somebody outside said to him, “ Conductor, ring your bell; ” that he did not ring the bell; that somebody on the outside of the car rang it and then the car started; that when the car started the plaintiff was off the car, standing in the street clear of the car; that somebody on the rear platform rang the bellj that when some one called back to him, “ Conductor, start your car,” he looked through the window to see if everything was all right, and he then saw the plaintiff standing in the street; that he did not ring the bell because he wanted to see if everything was all right ; that the bell strap was on the other side of the car, and he could not reach it from where he was compelled to stand to look out of the window to see if the plaintiff was off the car. A passenger testified that he saw the conductor looking out of the window watching the ¡Plaintiff get off the car, and that while the conductor was watching some one on the rear platform pulled the bell strap and the car went on; that the plaintiff was off the car before it started; that the bell did not ring until after the plaintiff was on the street free from the car, and that he saw a man on the back platform pull the bell, who was not the conductor of the car.
The court in submitting the case to the jury requested them to specifically answer two questions. The first was, “ Had the plaintiff alighted, with her feet upon the ground, where the car started ? ” The second question was, “ Was th¿ signal bell to start the car rung by the conductor ? ” Thó jury were instructed that if the conductor did not ring the bell they should find a general verdict for the defendant. The jury stated that they were unable to answer the first question, whereupon the court withdrew it and the jury then answered the second question in the negative, and found a general verdict for the defendant, and from the judgment entered upon that verdict the plaintiff appeals. In submitting this question to the jury the learned trial justice said: “If the conductor was standing, as he says, with his hand on one of the west straps, looking out to see whether this lady and her daughter had alighted in safety, and he saw her upon the ground, then under the issue as it is *318here presented, gentlemen, the charge of negligence is not sustained, because then the car had the right to move from the indications apparent to that conductor. * * * Has the plaintiff convinced us that she was in the act of alighting from the car and was thrown down because the sudden starting of the car propelled her along with the car when she was in a position that she could' not control her equilibrium, or not ? If you are convinced of that, why, then, gentlemen, yon are at liberty to find that this defendant was guilty of negligence, because it might very well be a, negligent act to jerk a car suddenly at a time that a passenger was in the act of alighting, when the conductor himself knew that the passenger was in the act of alighting.” These instructions having been given, counsel for the plaintiff said: “In view of this second question which you have submitted to the jury, I wish to state this to the court: That I contend that, even if the jury find that the bell was rung by somebody other than the conductor, still it is for them to say whether the starting of -that car was or was not the negligence of the defendant,” to which the court replied : “ I will give you an exception to that. I am inclined to hold in this case that if the jury find that the starting of the car was in response to a signal which the motorman supposed to come from the conductor, but which was actually made by the unauthorized action of a passenger, the plaintiff cannot recover.” To this the plaintiff excepted. The jury having retired, they returned to the court for further instructions, whereupon the court stated to the jury' “ that, if the can started in consequence of the bell being rung by somebody aside from the conductor and the motorman, the company is not liable for the fall, because the starting of the car was then not the negligent act of the defendant.” Counsel for the plaintiff asked the court to charge that “it is for the jury to say whether the starting of the car, under the circumstances disclosed by the evidence, was or was not negligent on the part of the defendant, irrespective of the question who pulled the bell.” That the court declined, and' the plaintiff excepted.
The question that was submitted to the jury, and which was to control their verdict, was whether or not the conductor rang the bell to start the car, and whether it was in answer to that signal that the motorman started the car. The jury were expressly *319instructed that if they should find that the conductor did not ring the bell, but that the motorman started the car in response to a bell which was rung by some one else, then as a matter of law the defendant was not guilty of negligence and the plaintiff could not recover ;• and the question presented is whether this instruction was error. I do not find that this question has been directly passed upon in any case in this State. The defendant was a common carrier and the plaintiff was a passenger. That relation existing, it was the duty of the defendant to allow the passenger reasonable opportunity to alight from the car. A violation of this duty made it responsible for any injury caused thereby to the passenger. This was an affirmative duty imposed upon the carrier, because its employees had the control and management of the car and were to determine when the car should start after it had come to a stop to allow the passenger to alight. If the car did stop for the purpose of allowing the passenger to alight and it started before the passenger had had such an opportunity, there was a violation of this duty which justified the jury in finding that the injury sustained by the plaintiff was caused by the negligence of the defendant, and for which the defendant was responsible.
The distinction between a cause of action which is based solely upon the negligence of a common carrier in relation to those with whom it has no contractual relation, and one based upon a violation of the carrier’s obligation to its passengers, is well settled. Many cases may be cited to show this distinction. It is illustrated by Carpenter v. Boston & Albany R. R. Co. (97 N. Y. 494). The plaintiff when upon the station platform of the defendant railroad, about to take a train, was knocked down and severely injured by a loaded mail bag thrown from the postal car while the train was in motion, and, as the court said : “ The only answer to his demand for compensation is that the missile was negligently thrown by the person in charge of the mail car, an employee or servant of the United States, and not of the company,” and the defendant was not liable for his act; but it was held, citing Putnam v. Broadway & Seventh Ave. R. R. Co. (55 N. Y. 113), “ that a railroad company was bound tó exercise the utmost vigilance not only in guarding its passengers against careless interference by others, but even against violence, and if in consequence of neglecting this duty he receives injury, *320which in view of all the circumstances, might have been reasonably anticipated,-it is liable.” In Dwinelle v. N. Y. C. & H. R. R. R. Co. (120 N. Y. 117) this distinction is also illustrated. There the plaintiff had purchased tickets for himself and wife from Geneva to New York, and also procured tickets for a section in a sleeping car from the porter of the car. The train was detained at Utica by an accident on the road and after waiting some time the plaintiff was informed by the porter of the sleeping car that he was required to take another train to be carried to New York./ Before taking the. train the plaintiff requested the porter of the sleeping car to give him a ticket showing that he was entitled to sleeping-car accommodations on the next train, or to state to the conductor that he was entitled to.such accommodations. This the porter refused to do, and after some dispute the porter struck the plaintiff a violent blow in the face knocking him down and rendering him unconscious. It was held that this presented a question for the jury, and the obligation of the carrier is stated as follows: “ Among the obligations which such contract imposes upon the carrier are, to protect the passenger against any injury from negligence or willful misconduct of its servants while performing the contract, and of his fellow passengers and strangers, so far as practicable, to treat him respectfully, and to provide him with the usual accommodations and any information and facilities necessary for the full performance of the contract upon the part of the carrier. And these obligations continue to rest upon the carrier, its servants and employes while such contract continues and is in process of performance.” In McDonald v. Long Island R. R. Co. (116 N. Y. 546), in discussing the duty of the railroad company' to give to passengers a reasonable opportunity to leave its train, it was said: “ In this instance upon the testimony as given on the part of the plaintiff, if taken as true, the conclusion was required, that the train did not stop a reasonable or sufficient time for the plaintiff to leave it before it started, and for that reason that the defendant was chargeable with negligence in that respect unless there was some other fact bearing upon that question for the consideration of the jury. It is argued that the defendant may have been relieved from this charge of negligence by the fact, if so found, that the conductor had no knowledge that the, plaintiff desired to leave the train at that station. It may be *321that the conductor did not have such knowledge, and. that he did not see the plaintiff when he left his seat, and thus failing to observe that any passenger was leaving the train, he may have deemed delay unnecessary. * * * The fact that the conductor did not know that the plaintiff intended to leave, and did not see him leaving the car, cannot furnish the defendant with an excuse for not giving the plaintiff a reasonable time to get from the train, unless the latter was so situated as to conceal himself from observation. * * * Such opportunity to alight from a train is within the undertaking assumed by a railroad company, and the safety of travel requires the observance of that duty. The fact that a passenger proceeds to leave a train at a station where it has stopped ought, for the purpose of his protection, to be known by the company, through its servants, and, therefore, so far as that is essential, it is deemed chargeable with knowledge; and if the proper discharge of duty in that respect requires more means of observation or precaution it should be furnished. The defense cannot successfully rest upon the inference that the conductor was in a situation where he could not or did not observe the purpose of the plaintiff to depart from the train.” And in Ferry v. Manhattan Railway Co. (118 N. Y. 497) it was said: “ It was the duty of the latter to give passengers a reasonable opportunity to leave the train at stations where they wished to alight. The conclusion was warranted by the evidence that no fault of the plaintiff contributed to the injury. And as the train and its movement were apparently under the control of the employees of the defendant, the presumption was permitted that the failure to give the plaintiff the opportunity to get from the car before the train started, and its consequences to her, were attributable to the negligence of the defendant. * * * And the burden was cast upon the defendant to repel such presumption.”
This positive duty having been imposed upon the defendant by virtue of its contract of carriage, to escape liability, where a passenger has not been awarded sufficient time to alight from a train, the defendant must prove that the accident was occasioned by some event over which it had no control, so that the starting of the car while the plaintiff was in the act of alighting was not the act of the defendant’s employees. The fact that the conductor or motorman- in *322charge of the car did not have knowledge of the fact that the plaintiff was alighting was expressly held not to be an excuse in the case of McDonald v. Long Island R. R. Co. (supra). Here the motorman had charge of starting the car. He started the car in response to a signal which he supposed came from the conductor. The jury have foupd that that signal was not given by the con- . ductor, but was given by a passenger upon the car and under circumstances which I have no doubt relieved the conductor from the imputation of any negligence; but can that be said as a matter of law to relieve the defendant from responsibility % The responsibility of • the defendant does not rest upon the negligence of any particular employee, nor does it require the plaintiff to prove that any particular employee was guilty 'of an act of negligence. The defendant’s duty was to give this plaintiff an opportunity to alight. ' To perform that duty it was bound to provide such methods for the starting of its car as would insure a passenger the opportunity which by the contract of carriage the defendant was bound to insure him. It was the duty of the conductor to give the signal w;hen the passenger had alighted. He gave no signal, but notwithstanding that fact the motorman started the car, and the fact that the motorman mistook the signal given to him as a signal from the conductor does not, as a matter of law, absolve the railroad company from liability for a failure to perform the duty which it owed to its passengers.
' There-still remains the question whether, under all the circumstances, there was, as a matter of fact, negligence, and the. whole question, it seems to me, was one for the jury to say whether there was negligence in the method adopted of running the car, the communication of signals and the act of the motorman in starting the car which resulted in the failure of the defendant to give the plaintiff an opportunity to alight, I am, therefore, of the opinion that it was error to charge the jury, that, as a matter of law, the defendant was relieved from all responsibility for the starting of the car by proof that the signal to start was given by a passenger and not by the conductor, and for that reason there must be a new trial:
. Judgment and .order-affirmed, with costs.