Opinion
March, 1915.
Stetson, Jennings Russell (R.L. von Bernuth, of of counsel), for appellant.
Wing Wing (George S. Wing and F.H. Gerrodette, of counsel), for respondent.
Defendant appeals from a judgment in favor of plaintiff entered on the verdict of a jury in an action to recover damages for personal injuries sustained by a passenger while about to alight from one of defendant's trains at Forest Hill, New Jersey. Plaintiff testified that she bought a ticket and became a passenger on defendant's train at Jersey City; that when the train reached Forest Hill, it stopped and she started to leave the car, but that before she had succeeded in alighting therefrom, and while she was on the last step of the car and holding onto the rails by the side of the steps, she was thrown from the car onto the ground by a sudden, jerking movement of the train and thereby injured.
The evidence shows that the train was a vestibule train from which passengers could not alight without the removal of the vestibule covering of the steps by defendant's servants; that the platform erected for the use of passengers at that station was on the north side of the track, but that, the main part of the town and the railroad station being on the south side, it had been a long established custom, with the acquiescence of the defendant company, for passengers to alight on the south side from trains coming in on the westbound track.
In addition to testimony tending to show defendant's freedom from negligence and plaintiff's contributory negligence defendant offered proof tending to establish that plaintiff had actually fully alighted from the car before the accident, and offered in evidence decisions from the New Jersey law reports in support of the defense set up in the answer pleading the law of New Jersey, which decisions hold the established law of New Jersey to be that where a passenger alights from a train on the side opposite the platform side, even with the acquiescence and approval of the carrier, upon so alighting he ceases to be a passenger, becomes a mere licensee and can only recover from the railroad company for damages occurring through wanton or wilful negligence on the part of the company. The law of New Jersey, though at variance with the established law in this state, must govern in this case; but the decisions offered in evidence by the defendant stating the New Jersey law are not applicable to the facts in this case as testified to by plaintiff and her witnesses, which must be deemed to have been accepted by the jury as the true version of the accident. Plaintiff did not voluntarily alight from the car. While still on the car and obeying the implied directions of defendant's servants, who removed the vestibule covering from the steps on the south side of the car, she was forcibly and violently ejected from the car by a sudden, jerking motion of the car which had previously come to a full stop. That no more made her a licensee than if she had been thrown out of one of the windows of the car as she arose from her seat. The fact that she intended to alight on the south side did not alter her status. So long as she remained on the car, she was a passenger to whom the defendant owed every duty it owed to other passengers.
The questions of defendant's negligence and plaintiff's contributory negligence were properly submitted to the jury.
The judgment must, therefore, be affirmed, with costs.
PENDLETON and SHEARN, JJ., concur.
Judgment affirmed, with costs.