Opinion
May 29, 1939.
In an action to recover for personal injuries the complaint alleges that the defendant was negligent in permitting a subway platform to become overcrowded, by reason of which plaintiff was forced off the platform to the train rails and was run over by an express train. Judgment entered on the verdict of a jury in favor of plaintiff reversed on the law and the facts, and a new trial granted, costs to abide the event. In our opinion plaintiff's proof was insufficient to raise the question of whether or not the platform was excessively crowded. ( Williams v. New York Rapid Transit Corp., 272 N.Y. 366; Commerford v. Interborough Rapid Transit Co., 199 App. Div. 852; McKinney v. N.Y. Consolidated R.R. Co., 230 N.Y. 194; Hanshew v. Lehigh Valley R.R. Co., 247 App. Div. 784; Diana Majorin v. Interborough Rapid Transit Co., 216 id. 711; Verdini v. Interborough Rapid Transit Co., 192 id. 379.) On the proof adduced the case should have been submitted to the jury on the sole issue of whether or not the motorman, who admittedly saw the plaintiff on the tracks, acted with reasonable prudence under the circumstances. A new trial is required in the interests of substantial justice. Lazansky, P.J., Hagarty, Adel and Taylor, JJ., concur; Carswell, J., dissents and votes to affirm.