On appeal from the Passaic County Circuit Court.
For the appellants, George S. Hobart and Ralph E. Cooper.
For the respondent, Alexander Simpson.
Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
The opinion of the court was delivered by
GUMMERE, CHIEF JUSTICE. Pauline Galamb, the plaintiff's decedent, while attempting to get off a train at the terminal of the Erie Railroad Company in Jersey City, fell from the train, went under it, and was killed. She was a girl eighteen years of age and was traveling from Passaic to Jersey City with some girl friends. The defendant Pope was the engineer of the train upon which plaintiff's decedent was riding. The trial resulted in a verdict in favor of the administrator and as against both of the defendants.
The first ground for reversal is based upon the contention that the trial court erred in refusing to grant a nonsuit, and further, in refusing to direct a verdict in favor of the defendants, the claim being that there was no evidence in the case showing negligence on the part of the engineer, and that consequently, neither he nor his employer, the railroad company, was responsible for the death of plaintiff's decedent. The testimony on the part of the plaintiff showed that as the train came into Jersey City and approached the station,
this girl and her friends, all of whom were passengers on the train, got up from their seats and went through the train to the front car, and that as the train was about to stop, they went out upon the front platform thereof. The proofs further showed that after doing this the train came to a standstill, and that plaintiff's decedent then started to step down from the platform of the car, and that while in the act of alighting there was a violent jerk of the train, first forward and then backward, which caused her to fall. In view of this testimony it was plainly for the jury to say whether or not the accident was the result of negligence in the operation of the train by defendant's engineer, and this being so, the trial court properly refused to nonsuit or to direct a verdict in favor of the defendants on this ground.
It is next contended that these motions should have been granted for the reason that the plaintiff's intestate was herself chargeable with contributory negligence as a matter of law. We consider this contention also to be without merit. If it was true, as counsel contends, that the girl had attempted to get off the train while it was still moving, and that the accident resulted because of her doing so, she would, of course, have been guilty of contributory negligence as a matter of law; but in view of the fact that as has already been stated, there was evidence that the train had stopped, and afterward suddenly jerked forward and then backward as she was in the act of alighting, the question of the existence of contributory negligence on the part of the plaintiff's intestate was one for the jury and not for the court to decide; for a passenger naturally does not anticipate a sudden jerk of a train which has come to a standstill as he or she is in the act of stepping from it, and consequently is under no obligation to use care to protect himself or herself against a danger arising from such a cause.
The next ground upon which we are asked to reverse is that there was material error in the court's charge in reciting the testimony of a witness called by the plaintiff and who was one of the decedent's companions. Assuming that the testimony was not accurately quoted, that fact affords
no ground of reversal, for the trial court expressly told the jury that if its recollection of the testimony of the witnesses varied from his statement of that testimony in the charge, it should disregard his statement and rely ...