p. 106That as the defendant had stationed a servant at - the place in question and -imposed upon him the duty 'of remedying any slippery condition of the platform, it could not invoke the rule applicable to municipal"corporations that sufficient time must elapse after the existence of the -defect to charge 'the municipal corporation with nqtice of such defect;
That even during, the- continuance of a. storm, making the place where persons alighted from and boarded the defendant’s trains -slipp'ery and dangerous, a jury might properly find that reasonable Care required the defendant to adopt some measure to lessen the danger, and that, if sanding would prove efficacious, even for a short time, it could not be held, as matter of law, that it was " not the duty of the defendant to adopt that measure, because the continuance of the storm would require its repetition.
Appeal by the defendant, the Interborough. Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered- in the office óf thé clerk of the county of Orange, on the 15th day of April, 1904, upon the vérdict of a jury' for $1,500, and also from an order entered in said clerk’s office on the 11th day of April, 1904, denying the defendant’s motion-for a new trial made upon the minutes.
Sidney Smith [Charles A. Gardiner with him ipn the brief], for the appellant.
Edwin S. Merrill [Thomas Watts with him on the brief], for the respondent.
This is a statutory action to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant between twelve and one o’clock on the afternoon o'f the 4th day of April, 1903. .The evidence on the part .of the plaintiff tended to show that it was a cold, stormy day, with rain in the morning, followed -by sleet and snow which continued up to the time of the accident; that at a point on tlíé platform of the defendant’s station where passengers;, alight from and'board its trains, north of the^eovered portion of the platform, snow and ice had formed by reason of persons tramping on the snow as it fell, or in some manner, só a's to form a hard, glary, slippery surface a quarter of an inch thick upon .which the plaintiff’s intestate, slipped, falling in front of an approaching train, thereby receiving iniuries from which she immediately died. On the part of the defendant it was
p. 107claimed that it employed a porter at this station, who was required during a storm to keep the boards, exposed to the weather, or which could become slippery either by getting wet or by the formation of ice, sanded; that in fact its porter had oh the morning in question discharged this duty; that at the time of the accident there was no snow or ice on the platform, which was thoroughly sanded; and that the injuries to plaintiff’s intestate were received, not 4s the result of slipping upon, any formation of ice and snow, but by her own act in deliberately jumping onto the tracks in front of the approaching train. The issues raised by these conflicting claims were fairly presented to the jury, with the result that they were resolved in favor of the plaintiff’s contention. The learned trial court charged the jury' that the defendant was only obliged to use reasonable care to provide the passengers a reasonably safe place on ■which to walk as a passageway to and from trains. The plaintiff’s intestate was a passenger of the defendant, having purchased a ticket and deposited it in the box kept for the purpose, before entering upon the platform.
The defendant urges three grounds for reversal of the judgment: First, that the defendant was not shown to have been guilty of negligence ; second, that the plaintiff’s intestate was not shown to have been free from contributory negligence ; and, third, that the verdict is against the weight of evidence.
As to the first proposition," the defendant relies upon the case of Kelly v. Manhattan R. Co. ( 112 N. Y. 443 , and cases therein cited) and upon the case of Rusk v. Manhattan R. Co. ( 46 App. Div. 100 ). In each of those two cases a person upon descending from the station of the defendant to the street had slipped upon a formation Of snow and ice on one of the steps of the stairway leading to the street, which, in the Rush case, was the result of a storm'then in progress,- and in the Kelly case was the result of a storm just recently ceased, in the' early hours of the morning, the accident having happened between half-past five and six o’clock; and in this respect the two cases are similar to the case at bar. In each of the two cases, cited it appeared that the defendant had furnished a covered stairway with handrails and in the Kell/y case it appeared that there were pieces of rubber on each step to prevent slipping, and it was held that the situation thus presented was not so obviously
p. 108dangerous to travelersi as that the .defendant wás ibduhd to anticipate-that-injury might he .sustained by reason of it, and that the defendant was -not liable for not immediately removing the-snow and ice after it. formed, or because it did not sprinkle sand, ashes or sawdust upon the ice and snow,- the -court saying iW the Kelly case, ■quoted-With approval-in .the Jtúéh case that,; “thfc failure to throw .'ashes: or sawdust or ¡something of that character-,upon' the steps during the storm cannot, be regarded-.as -■negligence,, because the continuance of the'storm' would soon ¡render the: ¡steps ¡as slippery as Before.” The case at bar, however, is- clearly distinguishable from the cases cited.. Here the accident occurred at midday at a place, -where the passengers, stepped to and from - trains, and the evidence warranted the ¡ jury - in finding- that the . defendant did. in fact.appréhend'danger, to- passengers from.this,very cause, because -it 'kept ¡a -servant-.upon :this -platform'forthe- pmrpo’sp -of -keeping it free from snow and-of keeping places sanded that might otherwise become slippery. ;--the jury have found.'that this, servant-did not properly discharge the duty imposed upon hito by the "defendant; .¡apd his; negligence as to the plaintiff’s: intestate' was the- néglb genee.-of the defendant. -■ The rule relied uponsby the appellant as to the duty of municipal, corporations, thab there- must be- sufficient time: after the' existence- of the-defect -to. give the- municipality notice, cannot apply to the defendant ¡at a! place whdreu 'serv- . ant-is- stationed, who in fact does have- immediate notipe of the situation as it arises. We think that even during -the continuance of a. storm ¡which makes' the place slippery-and- dangerous w-here persons alight from and board the defendant’s trains, a jury might find’ that reasonable.care: required the- defendant..-to>:adopt some measure to, lessen the danger,., and if sanding would prove efficacious, .if only for-a short time, that it cannot .be" held as. matter of law under ¡the peculiar facts ¡as disclosed -in this- case that it was not --the duty of the defendant to adopt that measure because the continuance ■ of the storm would require -its repetition." ¡It is to be-¡noted that--in the Kelly case the trial court had charged-the jury that, the -defendant “ was required to-use: all the ¡skill, all the diligence and all the Care that the-'most cautious human being would-use if he Were lobkingv; after: the-protection bf his--owns life -and health;” and the court held that this was an erroneous mile and did not apply to the
p. 109maintenance of the station, platform, approaches, etc. We think this case is governed by the case of
Weston v.
New York El. R. R. Co. (
73 N. Y. 595 ), and that the evidence warranted the submission to the jury of the question whether the defendant had exercised reasonable care in maintaining this platform in a reasonably safe condition, and that, it cannot be said as matter of law that. the intestate was guilty of contributory negligence, because she had - a right to rely upon the assumption that the defendant had performed this duty.
(Weston v.
New York El. R. R. Co., supra ; Ayres v.
D., L. & W. R. R. Co.,. 158 N. Y. 254 .)
We cannot say from this record that the verdict is against the weight of evidence. Only two witnesses saw the plaintiff go off from the platform ip front of the approaching train; one of these, the motorman of the defendant, testified that she jumped off; the other, who claimed he was. standing upon the platform near the plaintiff, waiting to board the train, testified that she slipped on the ice and fell off; and while his explanation of how he happened to be at this station at this time is not entirely satisfactory, he is corroborated as to the fact of his being there and as to the condition of the platform where the plaintiff’s intestate is claimed to have slipped, by another witness. - -
Reliance is placed by the appellant upon the exclamation, said to have heen made by the sister of the intestate upon hearing a newspaper paragraph read-, that evening describing' the accident,-“ Oh my, there is something that sounds like Mary,” as tending to support the defendant’s theory of suicidé, indicating that the friends of the intestate were apprehensive that such an event might occur. This would have some force if the record disclosed what the. paragraph read contained. If it contained a description of the deceased, the exclamation would be accounted for upon a different theory than that urged by the appellant.
. It is- also claimed that the pocket book, hat, hatpins, and two side-combs of the intestate were found upon the platform from which she either jumped or slipped, and it is* claimed that this tends strongly to support, the appellant’s contention. This also would have some force if it clearly appeared, as it does not, what was the exact location and position of these articles when found: The witness finding them testified that they were “in a row as if they :had
p. 110been placed' there,” but this is not entirely satisfactory. In the violent effort to- save herself she might have dropped the pocket book, and her hat, with the hatpins and combs, might easily have been thrown off. There was á sharp' conflict between the witnesses, as to the facts: ■ The two circumstances relied Upon by the appellant as 'establishing its contention are as susceptible of an explanation favorable to the plaintiff as'to' the defendant, and under these circumstances we should not interfere with the determination of the jury.
The judgment'and order should be affirmed, with costs.
Present—Hibschbebg, P. J., Babtlett, Jenks, , Rich ' and Milleb, JJ.
Judgment and order unanimously affirmed,, with costs.