188 A.D. 414 | N.Y. App. Div. | 1919
The plaintiffs’ decedent while walking on the edge of the wooden platform of the defendant’s station at Trumansburg was struck by the pilot beam of a locomotive of an incoming train and received injuries which resulted in his death. He had purchased a ticket for the purpose of becoming a passenger on that train. The platform extended a little more than eight feet from the station toward the track, except in front of a bay window of the station where it was narrower. The edge of the platform was parallel with the track and twenty-three inches distant from the inner side of the nearest rail. The pilot beam of the engine projected over the platform seven and one-quarter inches. As the train approached the station and was diminishing its speed for the purpose of stopping, the deceased, carrying a suitcase, walked toward
The question of contributory negligence of the deceased is disposed of by the case of Dobiecki v. Sharp (88 N. Y. 203), where a man ‘standing on a station platform was killed by the overhang of a car in a passing train. The court at length discusses the question of contributory negligence and held that it was a question for the jury.
That case also would be an authority for the plaintiffs on the question of the defendant’s negligence if they had alleged in their complaint negligence in the construction of the engine, and that question had been submitted to the jury. But as the case went to the jury negligence must be predicated on faulty construction of the platform in building it too close to the track. The distinction is perhaps somewhat technical, although the court seemed to dispose of that case on the theory that the cars rather than the platform were of faulty construction. The court said: ££ Assuming that they [the cars] did extend beyond the platform to the smallest extent proven, and in this form may have caused the death of the deceased or injured persons upon the platform, some evidence was presented that the cars were improperly constructed, and it was a question of fact for the jury whether this was negligence on the part of the defendant.” However, later in the same opinion the court said: ££ The contention that the plaintiff was bound to show something more than an improper construction of the platform or cars, and that she was bound to prove that this negligence was the cause of the injury is sufficiently answered by the remark that some of the evidence tended in that direction.”
. In Archer v. New York, New Haven & Hartford Railroad Company (106 N. Y. 589) a man standing on the platform was injured by an incoming train. The case was disposed of
The defendant relies strongly on the case of Dotson v. Erie R. R. Co. (68 N. J. Law, 679), where an accident occurred under circumstances undistinguishable from the present case, and it was held there was no liability on the part of the defendant, and authorities from other States are cited in support of the position there taken.' That case would be an authority for the defendant except for one feature. The opinion lays stress on the fact that there was no evidence that the construction was not in conformity to • common usage. That brings us to an important feature of' this case.
The plaintiffs called a witness who by experience, training and observation abundantly qualified himself to testify as to the common practice in building platforms with reference to their distance from the tracks. He stated that he had observed the method of construction in this particular with reference to different railroads. He was then .asked this question: “ What did you find to be the method of construction with reference to the Lehigh Valley at the edge of the platform from the nearest rail in common use in this vicinity, giving the dimensions and the road?” This was objected to by the defendant on various grounds, and the objections were overruled. Clearly the question was in all respects proper. The witness did not answer responsively, but gave three instances at Buffalo, East Ithaca and Camillus where this particular pilot beam could easily have cleared the platform, giving measurements somewhat in detail. The defendant moved to strike out the answer as not responsive. The court said: “ I won’t strike it out because you sat and listened to it, a timely objection would have excluded it all. The question called for a general rule, not an individual incident. This
The only other legal question raised by the defendant is the charge of the court in respect to the degree of care which the defendant owed the deceased. The charge was in substance that a high degree of care was owing in the transportation of passengers but that as to the platform and approaches to the train the rule of reasonable care applied. The charge in this respect was not prejudicial.
The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.