Majority
p. 279Henry Graham, App’lt, v. The Manhattan Railway Company, Resp’t. (New York Common Pleas, General Term, Filed May 17, 1894.)
Headnote
Negligence—Contributory. •A passenger, who puts himself where the gates of the car platform cannot he shut, or who goes voluntarily upon a car platform which he knows to he dangerous, assumes the risk which results in injury to him.
Appeal from a judgment entered on the dismissal of the complaint at trial term and an order denying a new trial.
Gilbert D.Lamb, for app’lt; Edward B. Thomas, for resp’t.
Appellant’s counsel having argued that the respondent was guilty of negligence and the appellant was free from it, the court called his attention to the fact that the plaintiff himself testified that when he got on the platform of the car it was so crowded that he could just get f standing-room on it, and that the respondent's servants could not get the gates shut That when he got on at 59th street it was impossible to get in the car. That when the train reached 53rd street and Eighth avenue, he got off the car; that then he was in a place of safety, and that although the platform was not emptied, but as he himself testified, he had no more space to stand in than before, he, knowing his danger, voluntarily went on the platform again, and that this was negligence on his part. To which appellant’s counsel replied, u I think the respondents ought to have taken two or three from that platform and put them over on the platform, they could have closed the gates then. I submit on the testimony of the witness McCabe he could hare taken the passengers off.
We think on the other hand it was the plain and manifest duty of the appellant when he found how dangerous the condition of the platform was and had reached a place of safety on the 53rd street platform, to wait for the next train and not put himself where the gates of the car platform could not be shut or have voluntarily gone upon a platform which he knew was dangerous, and by so doing took the risk which resulted in the injuries received by him.
The judgment should be affirmed with costs.