Opinion
December 30, 1908.
D.A. Marsh [ George D. Yeomans with him on the brief], for the appellant.
Adolph Ruger [ George O. Redington with him on the brief], for the respondent.
The exception to the refusal of the trial court to dismiss the complaint upon the ground that there was no proof of freedom from negligence on the part of the plaintiff, presents the only question here for our consideration.
The plaintiff was injured at the Park Row elevated station of the defendant in attempting to board one of its trains. She was injured by stepping into the space between the station platform and the platform of the car which she attempted to board. The width of this space is not established as the result of measurement, but is stated by the different witnesses as being from seven to thirteen inches. The sole negligence charged in the complaint is that the car was constructed in such a manner as to leave this space between it and the station platform. There is no proof that the station platform was not constructed in the ordinary way, nor that the space between it and the car platform was any greater than the necessities of the operation of the road required, nor that the car which plaintiff attempted to board was constructed in any different manner from the other cars used by the defendant. The accident occurred between twenty minutes past and half-past seven in the evening. The station platform was well lighted, and it is not contended that the plaintiff could not have distinctly seen the space between the two platforms had she looked. She testified: "I did not as I was getting on look down to see if there was any space because I did not know there was a space there. I was in no hurry, I had plenty of time. There was nobody by me at all. I was not looking for that hole there; I did not know it was there. If I had looked down to see where I was stepping there was not anything in the way between my eyes and this hole to prevent me seeing the hole; there was nothing in the way." "I simply walked along and did not think anything about any hole between the platform of the car and the station platform. * * * There was no rush or crush of any kind." "I know there was nobody pushed me or touched me that caused me to fall." "I was not hurrying in any way — in the ordinary way, walking along." It appears in evidence that no one else stepped into the space; other passengers found no difficulty. The plaintiff alone, paying no attention to her steps or where she was going, went blindly into the opening. If she had exercised any care, there is no reason to suppose that her safety would have been endangered. It is a matter of common knowledge that there is a space between car and station platforms on all railroads. The plaintiff contends that she had the right to assume that no such space existed between the station and car platforms, and was justified in attempting to board the car "in exactly the manner she did." The authorities cited do not sustain this proposition. The accident in the case at bar was not caused by any defect in the station platform, or obstruction, or the failure to properly light it. In Boyce v. Manhattan R. Co. ( 118 N.Y. 314) there was evidence that the station was unlighted and so dark that the hole into which plaintiff stepped could not be seen. In Jennings v. Van Schaick ( 108 N.Y. 530) there was a sidewalk in which was an open and unguarded coal hole into which plaintiff fell. The dangerous condition existed in the walk itself. In Carpenter v. Boston Albany R.R. Co. ( 97 N.Y. 494) plaintiff was injured while standing on the station platform by being struck by a full mail bag thrown from a passing train. In Ayres v. Delaware, L. W.R.R. Co. ( 158 N.Y. 254) the station platform was unlighted and plaintiff fell over a mail bag. Here the space would have been disclosed by a mere glance; the plaintiff had plenty of time in which to board the car; there was no pushing or crowding, and I think she was guilty of contributory negligence as matter of law.
The judgment and order should be reversed and a new trial ordered, costs to abide the event.
WOODWARD, JENKS, GAYNOR and MILLER, JJ., concurred.
Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.