p. 69Where a girl twelve years of age, who was sent "to such station for mail, stepped out of the front door of the post office to the station platform, which was less than five feet wide, and was struck and killed by a train running thirty-five miles an hour, which approached on a curved track without blowing a whistle or ringing a bell, the negligence of the railroad is a "question of fact for the jury.
. Where the decedent was struck hv the passing train a moment after she stepped upon the platform and it is apparent that she had not left- the platform or attempted to cross the tracks, she is not chargeable with contributory negligence.
It was hot negligent for her to step upon the platform in performance of her errand, nor was she bound to look and listen for an approaching train; but on the contrary had a right to assume that the platform was maintained by the defendant so that there was no danger of being drawn against a rapidly moving train by suction.
Appeal by the defendant, The Bew York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the ¡ilaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of August, 1908, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 14th day of September, 1908, denying the defendant’s motion for a new trial made upon the minutes.
John F. Brennan, for the appellant.
Edwin V. Guinan [Cornelius J. Earley with him on the brief], for the respondent.
Plaintiff’s intestate, a girl of twelve years of age, was sent to the defendant’s station, which was likewise the village post office (the postmistress and the station agent being one and the same person), for her father’s mail. She stepped out of the front door of the post office onto the station platform and was struck by a passing train, running at thirty-five miles an hour, and killed. The clear space of, the platform the jury might have found was less than five feet wide, and the theory of the plaintiff is that the decedent was caught in the swirl of the passing train and drawn toward it across this narrow platform and was struck by the cars. Bo one saw the accident; the nearest approach to an eye-witness was one who saw the child rolling along the platform after she had been struck, and
p. 70just what decedent did' will probably never be known. However, the evidence indicates: that the train must have been very' near when the child stepped out upon the platform, and the jury might, infer from the facts and circumstances disclosed that.she did not walk heedlessly into the pathway of this train.. The negligence of the defendant relied upon on the part of the plaintiff was the fact .of running this train past this station, Used as a .post office, ait a high rate of speed without giving warning of- its approach, witnesses testifying that no whistle was blown or bell rung,, and we are-of the opinion that a question was presented for the jui-y. The defendant permitted the use of its station as a post office.. It thus invited people, other than its passengers, to make use of the building .and the platform, and it owed the duty to exercise reasonable care to protect those who were thus lawfully and properly upon the premises. Whether it was exercising reasonable care in operating its train past this station, without giving warning óf its approach, in view of the construction of the. curved track, the-narrow platform, and all the surrounding circumstances,, was a question of fact for the 'jury to determine. This was not the case of one .driving or walking upon a railroad track; the plaintiff’s intestate does not appear to have been upon the track at all, for the evidence‘does not'indicate that she was struck by the engine; but was one where the decedent was properly upon-the defendant’s premises by its implied invitation, and if the surroundings were such as to make it obviously.dangerous to operate its' trains past this station at thirty-five miles per hour without giving warning, then the .jury might properly find that it: was negligent in so doing. ' .
On the question of contributory negligence the courts have held that'comparatively slight evidence will support a judgment where the person injured is killed, and 'there is ho eye-witness of the Occurrence, for the obvious reason, that to hold otherwise would be to deny justice in many instances. It is plain that the dbcedenit had not left the platform; that she had not stepped upon the track, for it is not claimed- by any one that she was -struck by the engine. The platform, was.less than five feet in width in front of the door; she. had only just stepped out a moment before the accident, and it is unthinkable that a girl of twelve years of age would have delib
p. 71erátely walked into collision, with a passing train running at the rate of speed testified to by the witnesses. ■ The inference might, therefore, be properly drawn that this child Was drawn into contact with the train by the force of the suction of the passing train, and that the accident occurred without any act of negligence on her part, for it Was not negligent of her to step out upon this platform in the performance of her errand to the station, and she was not bound to look and listen for an approaching train. She had a right to assume that this platform maintained by the defendant was reasonably safe for her occupancy; that the defendant would not so operate its trains as to make them a menace to her safety while she was there and exercising reasonable care to keep away from, trains which were passing..
The judgment and order appealed from should be affirmed.
Present —- Hirschberg, P. J., Woodward, Jenks, Rich and Miller, JJ.
Judgment and order unanimously affirmed, with costs.