Ainley v. Manhattan Railway Co.

Most of the argument as contained in the appellant’s brief is to the effect that although no exceptions were taken, yet substantial errors to the prejudice of the appellant having been committed by the learned justice who presided at the trial in the. submission of the.

This action was brought to recover damages alleged to have been sustained by the plaintiff through thé loss of the society and services of his wife and to recover expenses incurred for her benefit in consequence of her being injured by slipping on some ice at one of the appellant’s stations which she was leaving after having been a passenger upon the appellant’s cars. It was alleged that the appellant had been guilty of negligence in allowing snow and ice to accumulate and become slippery upon the stairs of the station in consequence of which the plaintiff’s wife slipped and fell.

. The main question involved in this appeal is raised by the exception to the denial of a motion to dismiss the complaint upon the ground that there was no evidence to establish negligence upon the part of the appellant or to make out any cause of action in favor .of the respondent.

In the consideration of this question it is entirely immaterial whether the law requires the appellant being a carrier of passengers to use the highest degree of diligence to make its platforms and the approaches thereto safe, convenient and useful, or whether the appellant, in respect thereto, is simply bound to exercise ordinary care, in view of the dangers attending their use, to make them reasonably adequate for the purpose to which they are devoted, because, adopting the rule most favorable for the appellant; there was sufficient evidence to justify the jury in finding that ordinary care had not been used to make the steps of its- station, on which the accident happened, reasonably safe for use, and, therefore, the motion to dismiss was properly denied. The evidence tended to show that there had been snow the day before the plaintiff’s wife fell; that the day she fell it had thawed in the middle of the day; that the drippings from the roof fell upon the stairs and towards night froze and became slippery and that no ashes or sand were sprinkled on the steps to prevent slipping, although there had been upon the platform, and that the day before the accident the stairs had been in about the same condition.

If the jury believed this evidence they were justified in finding that reasonable care had not been used in the maintenance of its platform and approaches. The duty of the appellant was at least to maintain and keep these

The degree of care to be exercised necessarily depends upon the circumstances of each individual case, because the hazards to be provided against, may be, greater in one case than in another.

The public in entering upon and departing from the' stations of the appellant, has at least the right to assume that they are kept reasonably safe for use, and are nob bound to be on their guard for extraordinary perils, and therefore, use extraordinary diligence. If the appellant allows its stairs to become so coated with ice that they are dangerous to be used by the passengers whom it invites to-use the accommodations which it furnishes to the public, the appellant does not perform the duty which is imposed upon it by law and is liable for any injuries resulting therefrom to its passengers, unless there has been coptributory negligence.

The appellant also claims that the learned judge erred in charging the jury that the plaintiff was entitled to recover for the loss of society of his wife and claims that the only cases in which this element of damages is allowed to be considered by the jury are actions of seduction “ where the defendant has run away with the wife and has actually •deprived the.plaintiff of her company.”

We are not aware that the rule is thus restricted. The rule is, that the husband is entitled to the assistance and society of his wife; he is entitled to recover damages against a party who unjustly deprives him of such assistance and society, and • there does not seem to be any reason if the fact-exists that.he:has,.been'deprived of .such, assistance and; society by the act of another, why he should not recover as well where such deprivation has been the result of the negligence of the defendant, as where such deprivation has been caused by the enticing away of the wife.

The only other exception necessary to consider is, the objection to the reading of the cross-examination of two witnesses whose evidence was taken upon another trial. It would appear that the reading of the testimony of these witnesses taken upon another trial had been consented to by the appellant, and if such were the fact, the respondent had the right to read the whole or any part of the evidence. He was not restricted to the direct-examination, nor need he read the whole of such examination. The whole of the testimony, so far as relevant, was open to both parties, and they could read that which they saw fit.

Macomber and Bartlett, JJ., concur.