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Gibson v. New York Consolidated Railroad

159 N.Y.S. 514 Court N.Y. App. Div. Decision date 1916-06-02 English

Delivered by SMITH, J.

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p. 514
(173 App. Div. 125)
GIBSON v. NEW YORK CONSOL. R. CO.
(Supreme Court, Appellate Division, First Department.
June 2, 1916.)

Headnote

Carriers <8=^308(6)—Passengers—Alighting;—Space Between Car Step and Platform.
A carrier of passengers is not liable for injury to alighting passenger, caused by his stepping, into a 7%-incb. space between the car step and station, platform, in the absence of special circumstances, such as a crowd, necessitating warning by the carrier.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1216, 1230, 1231; Dec. Dig. @=»303(6)J
®=»Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Trial Term, New York County.
Action by Mary Gibson against the New York Consolidated Railroad Company. From a judgment for plaintiff, entered upon verdict after trial, defendant appeals. Reversed, and complaint dismissed.
Argued before CLARKE, P. J., and LAUGHLIN, SCOTT, SMITH, and DAVIS, JJ.
H. L. Warner, of New York City, for appellant.
Richmond J. Reese, of New York City, for respondent.

The plaintiff with three children boarded one of the defendant’s cars at Coney Island. After the passengers were in the car and she was seated, she ascertained that she was upon the wrong train, and started out with her children. In stepping off the platform of the car, her foot passed down between the step of the car and the station platform, injuring her leg and thereafter causing a miscarriage, as she alleges. She swears that the distance between the edge of the step and the station platform is 8% inches. Her son, who was with her, swears to a distance of 7% inches. The proof by the defendant’s witnesses is that it could not have, exceeded 5% inches. The weight of the evidence is to the ef

p. 515
feet that the distance was from 5% to 7% inches. Upon this fact alone negligence seems to be charged. There was no crowd passing off the car which would require any warning to passengers generally. This space may be deemed within the evidence to be fairly necessary, so that the oscillations of a car as it passes the platform will not throw it into the platform. It may be assumed generally that where passengers are alighting they will watch their steps, unless the crowd is so intense that they cannot. It has therefore been held in Woolsey v. Brooklyn Heights R. R. Co., 123 App. Div. 631 , 108 N. Y. Supp. 16 , that a space oí 10 inches between a step and the platform was not negligence of itself, but that circumstances might arise to impose upon a company the burden of giving warning of that space. In Lafflin v. Buffalo & Southwestern Ry. Co., 106 N. Y. 136 , 12 N. E. 599 , 60 Am. Rep. 433 , it was held that a space of 11 inches between a step and the platform was not sufficient of itself to charge the defendant with negligence. To hold in the case at bar a maximum space of 7% inches between the car step and the platform would be of itself proof of the defendant’s negligence, which would authorize the plaintiff’s recovery for injury therefrom, would in our judgment be wholly unwarranted, and the judgment must, therefore, be reversed, with costs, and the complaint dismissed, with costs. Order filed. All concur.

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