The plaintiff's intestate was crushed under the wheels of a freight train and died from the effect of his injuries. The administrator sued to recover damages, but was non-suited at the trial and the General Term have affirmed the consequent judgment. I think the decision was clearly right and beyond any reasonable criticism.
The intestate boarded the defendant's train at Cobleskill, desiring to go to Schenectady. That he was no stranger to the situation is indicated by two facts. He had a mileage book of the company containing its tickets, which he would not have purchased unless in the frequent habit of passing over the road, and his remark to the conductor about the previous stopping of the same train at Quaker Street indicates his familiarity with its character and his habitual use of it. It was a through train bound to Albany, not scheduled to stop at Quaker Street, and inviting no passengers for that station. This fact the intestate perfectly well knew, and it was his duty to have known it before he went upon the train. What he desired to do was to leave the car at Quaker Street and go by another train direct to Schenectady, instead of following the two sides of the triangle and traveling first to Albany and then to Schenectady, which was the longer and more expensive route. He took the through train, hoping it would stop at Quaker Street, but without any invitation to enter based upon that possibility. He could reach his destination safely by either route, and he simply took his chances of being able to get off at the point which he preferred. He had no right to any such permission, and it is quite obvious that he knew it. The intestate was in the rear car of the train. When the conductor appeared and asked for tickets the intestate gave him his mileage book, saying, "Two for Quaker Street." The deceased was sitting by the side of Tracy, who was a witness for the plaintiff, and gave his testimony with a very commendable fairness and intelligence. It is his evidence that I shall follow for an account of the accident. In answer to intestate's announcement of his proposed destination "conductor said, I don't think we *Page 519 will stop at Quaker Street; he took the book and tore out some tickets, and said, I will see; he went on to the other end of the car and came back, and, in the meantime, Lewis said, You have stopped there before; he said, I will see; he came back in a minute or so and said, We will not stop at Quaker Street; you have got to get off here and get off quick, the train will be moving faster soon." When this conversation began the train was moving rapidly. When it ended the brakes had been applied and it was moving, very slow, but still in motion. It did not stop at all until after the accident. That is what every witness testifies to except one. He was a Presbyterian minister sitting in a different car from deceased, and with nothing to draw his attention to the precise facts. He said: "The train nearly stopped; I don't know but it did come to a stand-still;" but, on cross-examination, he said: "Am not able to say whether the train came to a stop or not." The uncontradicted evidence, therefore, is that it greatly abated its speed, but was in motion when the accident happened. Tracy's account of the conversation is varied somewhat in its form by the testimony of Burns, who said: "The conductor went to the rear of the car; then he came back and touched Lewis on the shoulder and told him he would have to get off there." The witness stated the conductor's language thus: "It is going pretty slow now, and it will be going faster, and you better get off now; that is all I have to say about it." No other witnesses describe the conversation. It is not easy to misunderstand what was said. It was not a command to leave the train, nor a direction to do so, nor a statement in any manner controlling the free action or free choice of Lewis. It informed him of two facts bearing upon his convenience; one, that the train would not stop at Quaker Street, the other, that, if he chose not to go to Albany, his only opportunity was to get off at once while the train was going slow, and, if he preferred to do that, he must do it quickly, for the train would soon be going faster. Any different construction of the conductor's words would be possible only as a last resort in the technical atmosphere of a law suit. *Page 520 They simply notified Lewis of an opportunity to be availed of promptly, if at all, and left him to choose between a safe ride to Albany and the experiment of leaving the train while moving slow. Lewis chose to avail himself of the opportunity and get off of the train while its motion was slight. He made this choice, not under a stress of circumstances occasioned by the neglect or wrongful act of the company, which we have sometimes admitted as an excuse, but solely for his own convenience and as the result of his own voluntary act. The company had in no manner created or caused the emergency which occasioned his choice.
It is probable that the train slackened its speed to enable a freight train approaching on the other track to first cross the bridge on which the two tracks were so close together that only one train could pass at a time. The proof does not show whether this was a usual or an exceptional circumstance. If usual, it would be a just inference that the conductor, knowing the place at which the brakes were applied, would infer the approach of a coming train first reaching the bridge. If, however, the express train, as is generally the case, had the right of way and it was the ordinary duty of the freight train to wait on the other side for the express to pass, or the coming train was "belated," as the plaintiff's counsel says, though I see no such proof in the case, or if from any other cause the slackening of speed at that point was exceptional, then it will not follow that the conductor knew, or ought to have known, that the freight train was approaching. The proof permits only of a guess on that point more or less reasonable according to the general knowledge with which one looks at it.
Returning to Tracy's account of the accident, and he is the sole and only witness who saw it and was able to describe it, it appears that he and Lewis both at once arose at the end of the conductor's statement, and came out upon the rear platform of the car. Lewis had in his left hand an umbrella and an overcoat, approached the steps leading to the side of the train, and with his right hand took hold of the iron rail fastened to the body of the car. What then occurred should be repeated in *Page 521 the words of the witness. "Lewis was first and got down and took hold of the railing and slipped off on the right-hand side; as we went to the rear end of the car he turned to the right and took hold of the railing and stepped off, and, about the time he stepped off, the train gave a sudden jerk and threw him against the rear end and he seemed to whirl right around over the track and fell in under a freight train;" * * * "I saw what he had hold of; he had hold of the railing that was on the end of the body of the car; I saw him step down; saw him step off; step down on the ground;" * * * "When Lewis stepped down that way he had an umbrella and an overcoat in his left hand; when he stepped down I saw his feet strike the ground; his feet did strike the ground; when he stepped on the ground he had hold of the railing of this car; he did not continue to hold on to it more than a second I think; and it was after he had fairly alighted on the ground; the sudden motion of the passenger train I spoke about was just about as he was in the act of stepping off; his feet had not struck the ground then; then after that he stepped down from the step and struck on the ground with both feet fairly, and retained his hold of the railing after that." * * * "I saw him spin around; that was when he was yet holding on the railing; when he was turning round; it was just after that; the jerk of the train came before that, when he was still on the steps; I could not say as to whether the jerk of the train threw him off under that train; it threw him against the rail; I saw him get on the ground with both feet; saw him still hold on the railing with his hand; he was still upright, with his face toward the engine; I noticed that he was moving along in the same direction as the train at that time." * * * "So far as I observed, when he came out on the platform, Lewis did not make the slightest observation." * * * "He took hold of the railing and was stepping off, and, as he was stepping off, the train gave a jerk, and that threw him against the railing, and he seemed to hang on for a second and fell down; this was all done in a second; done quicker than you could tell it." That is the whole evidence *Page 522 of the accident and its cause. It puts an end utterly to the theory that getting off of the moving train had nothing to do with the injury, and shows that it had everything to do with it, and was its sole explanation and cause. We see Lewis at the very last moment with his hold on the train unloosened, pulled along in its direction and spinning round with a fall. The whole thing occupied but a second. In telling it it seems longer, and the effort of the witness to analyze the sudden jerk and whirl makes it appear slower than the almost instantaneous event. That he might have seen the approaching freight train if he had looked; that he might have heard it if he had listened; that he took no observation whatever; that the jerk of his own train threw him off the step, and as his feet struck the ground his hold on the railing swept him from his balance; these are facts, obvious and beyond reasonable question, and which show that the deceased, instead of being free from negligence, met his death from that cause. We have held too often that it is a negligent act for one to get on or off of a moving train to discuss the subject anew, and the only condition which we have ever allowed to make it excusable did not, as I have shown, exist in this case. That excuse, allowed so far to modify the character of the act as to permit a jury to regard is as not necessarily negligent, was first stated in Filer v. N.Y. Central R.R. Co. (49 N.Y. 47), in which it was held that where the passenger by the wrongful act of the company is put to an election between leaving the cars while moving slowly or losing the station where he has a right to stop, the question of negligence becomes one of fact. It was not denied that alighting from a moving train was wrong or dangerous, but the decision went upon the ground that the act was not one of free agency, but was the product of coercion produced by the wrongful act of the company. In this case the election was occasioned solely by the fault of Lewis himself. He voluntarily and deliberately put himself in a position where there was but a possible chance of alighting at Quaker Street, and when that chance was gone the choice between leaving *Page 523 the train moving slow and going safely to his destination, flowed from his own fault, and was not produced by any wrongful act on the part of the company. A man cannot himself occasion the stress of circumstances under which he chooses, and then put them upon the company as an excuse for a dangerous act. We refused after a deliberate discussion to extend the principle of that rule so as to destroy it, in the case of Hunter v. C. S.V.R.R. Co. (126 N.Y. 18). We there held that the person injured acted as a free agent, that is, not coerced or compelled to choose by any fault or wrongful act of the company, and that his convenience or inconvenience was a matter of no account, and further that the invitation of the conductor did not alter that free ageney, or put any sort of coercion upon it. The same thing is true here. I do not regard the words of the conductor as amounting even to an invitation. They furnished a possible alternative having a risk about it which the passenger was free to accept or not, and left him to choose. Between these words, however regarded, and the accident lay the free agency of the passenger, not coerced by the company, and which it had not lessened, warped or controlled by any wrongful act of its own. No responsibility for the choice rested upon it.
Beyond that, we held in the Filer case, in spite of the stress of circumstances and the invitation of the train agents, that the passenger was not absolved from prudence and care in alighting from the moving train. We said of the then plaintiff that "if, in leaving the cars, she did not exercise the care and caution which she might and ought to have done, and was careless and negligent in her movements, or in the care of her dress, and by reason of such want of care caused or contributed to the injury, she ought not to recover." Here, not only is no care or caution affirmatively shown, but the absence of it is proved. The passenger put his convenience above his safety. He knew it was risky and unsafe to alight from a moving train; that he was about to take that risk; that another track was alongside warning him of peril from that direction; that a train might pass at any moment and increase *Page 524 the danger of his intended act, but, instead of exercising a care commensurate with the known danger, Lewis rushed off hastily in the face of the freight train, without making the slightest observation, when he might easily have seen it if he had looked. It is said the conductor should have warned him. But Lewis knew everything except one, and that one he was bound to expect might occur. Possibly the conductor did know that the freight train was approaching, although there is no proof of the fact. It is equally possible that he did not know. He was inside the cars where he could not see and might not have heard; the slowing of the train may have been a common and prescribed act before crossing, and not indicative of an approaching train having a right of way, and the train which did come out of its time, even if the conductor knew what its regular time was. If we are to guess about it, the chance of guessing right is very slender. But what the conductor may have known, the passenger was bound to expect, whether warned or not, and the duty of care and prudence which he did not exercise remained.
These views accord with those expressed in the courts below, and the judgment should be affirmed, with costs.
ANDREWS, Ch. J., PECKHAM and BARTLETT, JJ., concur with O'BRIEN, J., for reversal; GRAY and HAIGHT, JJ., concur with FINCH, J., for affirmance.
Judgment reversed.