This is the appeal by the plaintiff below from a judgment of nonsuit entered in behalf of the defendant-appellee in the District Court. The complaint charged that on December 23d 1938, the plaintiff was a passenger on one of defendant's trains operated between the city of New York and the city of Hoboken, New Jersey. It further charged the plaintiff was injured while alighting from the train to the platform of the defendant's station. The specific negligence alleged was: "On or about said date, while such *Page 503 passenger, plaintiff was injured by the negligence of the defendant in that the defendant stopped the train whereon plaintiff was a passenger and caused plaintiff to alight therefrom in the city of Hoboken, at a place which was unsafe for alighting passengers, in that there was a dangerously wide space between the door of the passenger car from which plaintiff was alighting and the platform whereon the defendant caused the plaintiff to alight, and in that the defendant failed to warn the plaintiff of the existence of such space."
At the close of the plaintiff's case the court below granted a nonsuit because of the plaintiff's failure to prove any negligence on the part of the defendant. The defendant here argues that the court below did not err in entering judgment of nonsuit against the plaintiff and did not err in refusing to permit the plaintiff to answer a question propounded by her counsel.
We believe that the court below did not err in entering a judgment of nonsuit against the plaintiff.
The facts were not in dispute. The plaintiff boarded one of the defendant's trains at New York City. She was a passenger in the last car. This train stopped at Hoboken about six-forty P.M., after the rush was over. When the train arrived at Hoboken, it came to a full stop and she started to alight. The car in which she was riding was not crowded and only two or three people were ahead of her as she started to walk to the door. A woman who was walking immediately ahead of her stumbled when she was at the doorway. The plaintiff then attempted to walk out. The train had stopped at the platform almost opposite the dispatcher's office and at that place there was a space possibly thirteen inches wide between the platform and the car. She started to step from the car to the platform and her left leg went down in this space and was injured. At that point the platform was not straight but curved.
As stated supra the defendant was charged with negligence in failing to provide the plaintiff with a safe place in order that she might alight from the car on which she was a passenger. The record is barren of any testimony which would show that the defendant improperly constructed its station *Page 504 platform or improperly constructed the car on which the plaintiff was a passenger and under this fact situation the question here presented is whether or not the defendant violated any duty that it owed to the plaintiff.
The facts presented in the case sub judice come squarely within the facts of Kingsley v. Delaware, Lackawanna andWestern Railroad Co.,
In the Kingsley case the court adopted the reasoning and decisions in various cases in other courts of last resort, among others, Hilborn v. Boston and N. St. Ry. Co.,
Again, in the Kingsley case our Court of Errors and Appeals relied upon and followed the case of Ryan v. Manhattan RailwayCo.,
From the foregoing testimony and a resume of cases (more particularly the Kingsley case which is certainly controlling here) it is apparent that the defendant violated no duty which it owed to the plaintiff. There being no evidence of any negligence on the part of the defendant in the construction of its platform or cars it must be assumed that the platform and cars were constructed in a proper manner. It is obvious, therefore, that the court below was entirely justified in entering a judgment of nonsuit against the plaintiff, for to permit a jury to pass upon the alleged negligence of the defendant simply because there was proof of the existence of a space between its car and the platform would require the jury to substitute its judgment for the judgment of the railroad managers and subject the railroad company to the danger of being guilty of negligence no matter what plan it adopted in the construction of its platform and cars. Traphagen v. Erie Railroad Co. (Court of Errors andAppeals),
On this phase of the case it remains for us to examine the contention of the plaintiff that the Kingsley case has been abrogated by subsequent decisions of Gore v. Delaware,Lackawanna and Western Railroad Co.,
We have pointed out that the mere fact that the defendant stopped its train on a curved portion of the platform rather than at a straight portion is not negligence per se. Moreover, *Page 508 the fact that a space existed between the car of the defendant's train and the station platform was no evidence of negligence, in the absence of proof of improper construction of either the platform or the car.
Finally, we think it clear that the court did not err in overruling a question put to the plaintiff. The question was plainly immaterial and irrelevant.
The judgment below will be affirmed, with costs.