58 N.Y.S. 839 | N.Y. App. Div. | 1899
The evidence offered in behalf of the plaintiff upon the trial of this action authoi'ized the jury to infer the existence of a condition of things at the time of the accident which befell her, which would-have sustained the verdict in her favor. She was a passenger on one of the defendant’s cars running through New Utrecht avenue. Desiring to alight, she motioned to the conductor to stop, and the car stopped near Fifty-seventh street. As she stepped from the caito the ground the soil gave way under her feet, and she fell to the surface of the street, sustaining a fracture of the hip. It appears that at the time of the accident the tracks and roadbed of the defendant’s railway, between Fifty-sixth street and Fifty eighth street, on New Utrecht avenue, were from eighteen to twenty inches higher than the general surface of the avenue in that vicinity, the street having been cut down to the lower level several months before. The roadbed and railway thus constituted an embankment from eighteen to twenty inches high along the middle of the avenue.
The gravamen of the complaint was that the defendant negligently maintained its roadbed at the place where the accident occurred in a dangerous, defective, improper and unsafe condition, and invited and permitted the plaintiff to alight thereon, thereby causing her to suffer the fracture of the hip already mentioned and other severe injuries ; and the case was submitted to the jury on the theory that the plaintiff could not recover unless the place which gave way under her feet was a part of the defendant’s roadbed. The jury were also expressly instructed that the term “ roadbed ” did not include any of the ground outside the end of the sleepers.
The defendant introduced no testimony, and the proof in behalf of the plaintiff did not show by whose agency the general surface of New Utrecht avenue was lowered so as to create, for the time being, the embankment along which the defendant’s railroad was then operated. There was evidence that other similar accidents had previously happened to passengers alighting from the cars of this railroad company under similar circumstances, while the street ivas in the same condition, and this proof rendered the defendant chargeable with notice that its roadbed in that neighborhood was likely to give way under persons leaving its cars, and imposed upon it the duty of exercising greater caution than might otherwise have been necessary to afford passengers an opportunity to alight in safety, even if the defendant was in nowise responsible for lowering the adjacent surface of the avenue. A knowledge that such change created a condition of danger which might not be obvious to outgoing passengers, called for the exercise of some degree of care, either by warning or otherwise, to prevent accidents such as that which befell the plaintiff. If the defendant was unable to maintain its own roadbed in a condition safe for passengers to step upon by reason of the action of the city authorities in lowering the grade of the street, it was at all events bound to inform its passengers who were about to alight upon that roadbed that they could not do so with safety.
There is a case in Georgia which asserts the obligation of a street railway company to provide a safe place of egress for passengers, more strongly than any other decision which I have been able to find. There the court say : “ Companies engaged in carrying passengers on cars along a public street are not understood as engaging to make safe landing places, but to select them.” (Augusta Railway Co. v. Glover, 92 Ga. 132, 146.) An examination of the facts
I am inclined to think, therefore, that the instruction of the court to which this exception relates would have to be regarded as too broad, if we took the same view of it as does the learned counsel for the appellant, and considered it as though it stood alone, separate and apart from the rest of the charge. It must be remembered, however, that the court had distinctly impressed upon the minds of the jury the proposition that they could not find a verdict in favor of the plaintiff unless the accident occurred in consequence of the dangerous condition of that portion of defendant’s roadbed upon which the plaintiff stepped. As to this part of the street, it was a place which the defendant was bound to exercise reasonable care to keep safe for the use of passengers invited or permitted to alight upon it, so that when all portions of the charge which relate to this subject are construed together, we find that the jury were merely instructed that if the defendant provided any part of its roadbed as a place for passengers to alight on, it was bound to exercise reasonable care to keep that particular place safe for the purpose. In this instruction there was certainly no error.
Although the accident occurred in daylight, the conditions of danger were not so obvious as to charge the plaintiff with contributory negligence as a matter of law, and that question was properly left to the jury.
In both aspects of the case 1 think the judgment should be affirmed.
Judgment and order unanimously affirmed, with costs.