Meagher v. Long Island R.R. Co.

261 N.E.2d 384 (1970)


P missed his normal train but decided to take another and informed his wife he would be at the Mineloa station. The train was not scheduled to stop at Mineola, but it was customary for the train to travel slowly in the vicinity of the Mineola station, pending clearance to proceed through the crossover switch and onto the Oyster Bay Line. P was killed while disembarking at the Mineola station. There is a conflict of evidence as to whether the train had stopped or was moving at the time of the accident, and also, whether P was fatally injured as a result of his riding on the platform (vestibule) of the car in violation of section 83 of the Railroad Law. D claimed P's contributory negligence and Section 83 wherein D could not be liable for any injury to any passenger while on the platform [vestibule] of a car * * * in violation of the printed regulations. Both prerequisites of section 83 were satisfied. D asked the court to instruct the jury that if P went upon the car platform while the car was in motion, in violation of section 83 of the Railroad Law, and such act on the part of the P was the proximate cause of his injuries, P could not recover. The court instructed the jury that section 83 does not apply 'to a passenger preparing to leave the train at a station who enters upon the platform as the train enters the station.' D asked the court to charge that if the jury found P stepped or jumped off a moving train, then the jury must find for D. Instead, the court instructed the jury: 'While a railroad is under a duty to allow its passengers a reasonable time in which to board or alight from a train, a passenger is guilty of contributory negligence, as a matter of law, if he attempts to get off a train that is moving at other than an exceedingly slow rate of speed, for example, not more than two or three miles per hour.' The verdict went to P and was affirmed on appeal. D appealed.