Opinion
Argued December 7, 1914
Decided January 12, 1915
Thomas J. O'Neill for appellant.
John F. Brennan for respondent.
We are of the opinion that the defendant owed the plaintiff the duty of reasonable care in the maintenance of its station platform and the approaches thereto, but we are also of the opinion that the evidence is insufficient to show that the defendant violated the duty, or that the plaintiff, himself, was free from contributory negligence. The case being one in which the trial court should have granted the defendant's motion to dismiss the complaint, the Appellate Division acted within its power in making the disposition of the case which the trial court should have made. ( Middleton v. Whitridge, 213 N.Y. 499, decided herewith.)
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, HOGAN, MILLER and CARDOZO, JJ., concur.
Judgment affirmed.