Rose v. Nassau Electric Railroad — 129 A.D. 915

p. 915

George W. Rose, Respondent, v. The Nassau Electric Railroad Company and The Brooklyn Heights Railroad Company, Appellants.

Headnote

Railroads — street railways—injury to passenger who slipped on leaving car.

Appeal by the defendants from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Kings county on the 7th day of March, 1908, and also from an order entered in the same office on the 3d day of April, 1908, denying their motion for a new trial made upon the minutes.

Judgment and order affirmed, with costs. No opinion. Woodward, Jenks, Hooker and Rich, JJ., concurred; Gaynor, J., read for reversal.

At 36th street in the Borough of Brooklyn, the downtown surface cars on Fifth avenue transfer passengers to the elevated or overhead railroad, if they wish it, and the cars stop at or near the elevated railroad stairs for that purpose. The distance from the car track to the curb is 13 feet 7-J- inches. The plaintiff got out of the car to transfer, and as he walked to the curb he slipped on ice and fell. His head was near the curb, one foot from it, as he lay prone after falling. The defendant has been held liable under a charge that is quite difficult to define. “ The railroad company was not burdened with the duty of keeping the whole width of thirteen feet seven and one-half inches free for use and free from the smoothness of ice,” it says. It does not say just how much of that distance,, viz., from the car to the curb, it was burdened with the duty of keeping free from ice, but' the charge leaves a distinct though indefinite implication of some duty in that regard. The defendant had no such duty. If it had such a duty at that point, then it would have it at every crossing or stopping place, and we all know that it has no such duty. The judgment should be reversed.