(HUMPHREY, J.) COURT'S CHARGE. Gentlemen, in this case there is no dispute of fact. Everybody says that on the day in question the plaintiff was on the platform of this railroad company, the defendant, and while she was thus upon the platform some fireworks fell from the hand of a passenger who was entering a car, which was then in motion, to the platform or the track, an explosion occurred, and that subsequently the plaintiff developed a nervousness which still persists and which, according to her claim, will persist for some tinie in the future. There was no duty upon the part of the defendant to examine each passenger as he entered the platform to see what was in any package he might be carrying. The plaintiff herself carried package, and she might just as well complain if a uniformed man had come up to her and insisted upon her opening her package and showing him what she had in it. No such duty devolves upon the railroad company in this case, and no negligence can be predicated upon the failure of the defendant to stop a passenger while moving across its platform and examining what he might have with him. If every passenger was examined who was entering a railway or trolley car or subway train, and searched for what he might have upon him, none of us would be able to get anywhere. The purpose of railroad travel is that we can get some place. That is not what the plaintiff claims was the negligence of the defendant that caused her. injury. She claims that the guard upon the platform, the station platform, and the guard upon the train platform, were careless and negligent in the way they handled this particular passenger after he came upon the platform and while he was boarding the train, and that is the question that is submitted to you for your consideration. Did those men omit to do something which ordinarily prudent and careful train men should not omit to do? Or did they do something which an ordinarily prudent and careful officer in charge of a railway train in the station platform should not have done? If they did, and the plaintiff met with her injuries through the careless act upon the part of the trainmen of the defendant, then she would be entitled to recover. If they were not at fault, if they did nothing which ordinarily prudent and careful train employees should do in regard to passengers moving upon their trains, then there can be no liability. If they omitted to do the things which prudent and careful trainmen do for the safety of those who are boarding their trains, as well as the safety of those who are standing upon the platform waiting for other trains, and that the failure resulted in the plaintiff's injury, then the defendant would be liable. You should first discuss the question of the liability of the defendant, under the rules that I have given you, and if you should find the defendant guilty of no negligence, then your verdict would be for the defendant and you would not be concerned with the question of the amount of the plaintiff's injury. If you should find, under the rules that I have given you, that the defendant is liable, then you would pass to the question of the amount that the plaintiff is entitled to recover. If you reach that point in your discussion, you will give her a sm which will fully and fairly compensate her for the pain and suffering which came to her as a result of any physical injuries — bodily injuries she may have sustained, and which she has endured from that time down to the present time; and if you find from the evidence that she will suffer in the future, then such sum as you shall say will compensate her for that future suffering, and in addition to that such sum as she lost in earnings during the time that she was incapacitated, and such reasonable sum as she was required to pay for medicines and medical attendance. Those are the elements or items which go to make up her claim for damages, but first settle the question of liability before you discuss the question of damages at all. The burden of proof is upon the plaintiff. She must satisfy you by a fair preponderance or greater weight of the testimony that the accident happened solely through the fault of the defendant, through its trainmen or platform-men in the control of passengers going upon its trains.. The plaintiff and defendant are both interested. The plaintiff is seeking money and the defendant is seeking to avoid paying money, and each has that interest, which is apparent. Have you any requests? Mr. Wood: No requests, your Honor. Mr. McNamara: I ask your Honor to charge the jury, that under the testimony in this case no negligence can be found on the part of the defendant unless it knew, or should have known, that the bundle carried by the passenger contained fireworks or explosives. The Court: I decline to so charge. Mr. McNamara: Exception. I ask your Honor to charge the jury that they may draw no inference from the defendant's failure to put witnesses on the stand. The Court: I so charge. Mr. McNamara: I ask your Honor to charge the jury that if they find that the defendant's servants were assisting the passenger upon the train and in so doing knocked the bundle from his hand, that that act of the servants is not the proximate cause of the plaintiff's injuries. The Court: I decline. Mr. McNamara : Exception. Juror No. 1: Your Honor, may I ask a question? There was no evidence to show whether the door was shut at the time the train left, or the door was closed before the train went in motion. There has been nothing shown in the case. Am I permitted to ask that question? The Court: Well, what have you to say about it? Mr. Wood: I don't see that it makes any difference. Mr. McNamara: In view of the question of the juror, I ask your Honor to charge the jury that the fact that the door of the train The Court: There is no evidence that the door of the train was closed, or the gate of the door was closed - the gate of the platform was closed. There is no evidence that it was closed. You may retire, gentlemen. (The jury retired at 11:55 A.M. and returned at 2:30 P.M., finding a verdict in favor of the plaintiff in the sum of $6,000.) Mr. McNamara: If your Honor please, I move to see the verdict aside upon all the grounds specified in Section 549 of the Civil Practice Act. The Court: Well, I think not. Of course, it is a close question in my mind, but, at the same time, I will let the verdict stand. Mr. McNamara: Exception. May I have thirty and sixty days? 1 The Court: Yes. (The foregoing contains all the evidence given upon the trial.) AFFIDAVIT OF NO OPINION. State and County of New York, ss: JOSEPH F. KEANY, being duly sworn, says: that he is the attorney for the defendant-appellant herein. That no opinion was handed down by Mr. Justice Humphrey upon his denial of the defendantappellant's motion for a new trial. JOSEPH F. KEANY Sworn to before me this 20th day of July, 1927. HARRY K. HOWLAND Notary Public, Suffolk County Certificate filed New York County Clerk No. 296 1 See p. 35, supra. STIPULATION SETTLING CASE. It is hereby stipulated that the foregoing case contains all the evidence given upon the trial of this action and that the same be settled and ordered on file and annexed to the Judgment Roll herein, filed in the office of the Clerk of Kings County. Dated July 21st, 1927. MATTHEW W, WOOD, Attorney for Plaintiff-Respondent. JOSEPH F. KEANY, Attorney for Defendant-Appellant. ORDER SETTLING CASE. Upon the above stipulation the foregoing case and exceptions on Appeal are hereby settled and ordered on file and annexed to the Judgment Roll filed in the office of the Clerk of Kings County. Dated July 21st, 1927. BURT JAY HUMPHREY, STIPULATION WAIVING CERTIFICATION. Pursuant to Section 170 of the Civil Practice Act, it is hereby stipulated that the foregoing are true and correct copies of the Case on Appeal herein, the Judgment Roll, the Case and Exceptions, as settled, and the whole thereof, all of which are now on file in the office of the Clerk of Kings County and certification thereof by the Clerk is hereby waived. Dated July 21st, 1927. MATTHEW W. WOOD, Attorney for Plaintiff-Respondent. JOSEPH F. KEany, Attorney for Defendant-Appellant. ORDER FILING RECORD IN APPELLATE DIVISION. Pursuant to Section 616 of the Civil Practice Act, it is ordered that the foregoing Printed Record be filed in the office of the Clerk of the Appellate Division of the Supreme Court of the Second Department. PLEASE TAKE NOTICE that the defendant, The Long Island Railroad Company, hereby appeals to the Court of Appeals of the State of New York from an order made by the Supreme Court, Appellate Division, Second Judicial Department, on December 9th, 1927 and entered in the office of the Clerk of the said Appellate Division on the same date which order affirmed a judgment entered herein in the office of the Clerk of the County of Kings on the 31st day of May 1927, in favor of the plaintiff and against the defendant in the sum of Six Thousand, One Hundred forty two and forty five one hundredths Dollars ($6,142.45), and also affirmed an order denying the motion of the said defendant to have the verdict set aside and to have a new trial, entered in the office of the Clerk of the County of Kings on the 27th day of May 1927. AND YOU WILL FURTHER TAKE NOTICE, that the defendant, The Long Island Railroad Company also appeals to the said Court of Appeals from a judgment of affirmance entered upon the said order of the Appellate Division, Second Department, in the office of the Clerk of the County of Kings on the 16th day of December 1927 for the sum of One Hundred and twenty eight one hundredths Dollars ($100.28). AND YOU WILL FURTHER TAKE NOTICE, that the defendant, The Long Island Railroad Company appeals from each and every part |