Lead Opinion
The action is for damages for the death of plaintiff’s intestate caused, as is alleged, by defendant’s negligence. The defendant operates a railroad in the subway in the city of New York. On January 22, 1911, the deceased entered the easterly or uptown station of defendant’s railway at Twenty-third street and Fourth avenue. At this point there were four tracks, two for express trains in the middle and two on the sides, one for uptown and one for downtown local trains. The station was a local one at which express trains did not stop. There were two unconnected platforms, one on the west side next to the downtown track, and one on the east side next to the uptown track. Deceased wishing to go uptown went onto the easterly platform. There was some delay in the operation of the road so that no local uptown train had passed for about half an hour, and quite a number of passengers, estimated at from twenty-five to fifty, were awaiting a train. There being at these stations but few seats, the waiting passengers walked to and fro, occasionally looking down the track in the direction from which a north-bound train would come. Among them was deceased. As she was looking downtown a train came fast from uptown running downtown without a warning of any kind of its approach. This train struck deceased and killed her. The complaint was dismissed upon the plaintiff’s case presumably because the trial judge considered that deceased had been guilty of contributory negligence as matter of law, and it is upon this ground that defendant seeks to sustain the judgment, citing a great number of cases that have but slight application to the facts of the present case.
In our opinion it was erroneous to hold as matter of law that the deceased was negligent. The platform was wholly unguarded, and, although it appears that many of the waiting passengers besides the deceased looked down the track to see if a train was approaching, it does not appear that they were warned by voice or sign that it was dangerous to do so. Indeed it may be accepted almost as a matter of common knowledge that it is a prevalent and most natural habit for passengers waiting for a delayed train to peer along the track in the direction from which the train is expected to come.
As to the defendant’s negligence in running without warning and at a high rate of speed the reverse way of the road past a platform crowded with passengers there seems to be little question.
The judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
Laughlin and Hotchkiss, JJ., concurred; Ingraham, P. J., and McLaughlin, J., dissented.
Dissenting Opinion
I am unable to concur in the opinion of Mr. Justice Scott that the judgment here appealed from should be reversed. Unlike the tracks of a street railway, which occupy a part of the public highway, or the tracks of a steam railway, which are necessarily provided with public crossings, defendant’s tracks are adapted and maintained solely and exclusively for the operation of its trains, and this must have been known by decedent. When a car enters the station, it runs close to the edge of the passenger platform, which is some three or four feet above the level of the tracks. The fact is undisputed that immediately preceding the accident the decedent left a position of safety on the platform, leaned over its edge, and placed a por
The judgment appealed from should be affirmed.
Ingraham, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.