Kemp v. New York Central & Hudson River Railroad

| N.Y. App. Div. | Dec 10, 1909

Miller, J.:

On the 10th day of December* 1906, between the' hours of five ánd six o’clock p. m., the plaintiff, in attempting to catch a moving train at .Tarry town Heights station on the defendant’s road, slipped' on the station platform- and fell under the train, sustaining injuries for which he has recovered in this action. .

The. defendant’s road was a single-track steam road. The station where the accident happened is located in a sparsely-settled farming district. Between the waiting room and the track, and extending several feet in each direction along the track beyond the waiting room, was an uncovered station platform, six feet and six inches wide. When the plaintiff was some distance from the station he saw the train coming in and started to run. The train started up before he had reached the-station. Without stopping to purchased ticket he ran up the steps onto the platform past the station, turned at the corner and ran diagonally down the platform along the track pov-aral feet beyond the station. When within two feet from the Edge' of the platform he concluded that, owing to the speed of the train, it was impossible for him to board it, and attempted to stop. In making the attempt his feet went out from under' him and he rolled between the train and the platform. The plaintiff says that, on approaching the platform and turning the corner, he was running as fast as lie could, and he describes his speed from.the corner as a “ Spurt.” The plaintiff testified that he noticed that the roadway to the station was slippery, and that there was snow on the steps of the station platform; but he says that lie did not observe the ice . and sn.'W on the-station platform for the reason that lie was watching the train. The plaintiff’s evidence tends to show that a sleet storm had been in progress during the day, but that it had stopped about three o’clock, and that the platform where the plaintiff fell was covered with ice. The defendant’s evidence tends-to show that it was still raining and freezing when the accident happened.

I am not prepared to say that a railroad must keep every part of its station platforms at stations like that involved in this case entirely free from ice ancl snow at all times at the risk of being held guilty of negligence. Weston v. N. Y. Elevated R. R. Co. (73 N.Y. 595" court="NY" date_filed="1878-03-26" href="https://app.midpage.ai/document/weston-v--new-york-elevated-railroad-company-3610043?utm_source=webapp" opinion_id="3610043">73 N. Y. 595) was decided with reference to the platform of an elevated railroad station in a city. The situation at a station on a single-track steam road in a sparsely-settled district is very different. Of course, the defendant had to -use ordinary care to make the approach to its trains safe; but the plaintiff did not meet with his accident at the place on the platform where the defendant’s trains stopped to discharge and receive passengers. He had run down the platform away from the station in the attempt to catch and board the moving train, and the defendant had no reason to anticipate the accident that happened.

We are all familiar with conditions following a sleet storm such as is described by the evidence in this case. The plaintiff must, have observed those conditions. He himself, says that he noticed that the road was slippery. Very.likely, as he says, he did not observe the condition of the station platform as he was intent upon catching his train. His testimony shows plainly what liappenéd and how it happened. He ran as fast as he could to the station platform, turned the corner, made a dash, a “spurt,” as he calls.it, down the platform along with the,moving train, and when lie saw that he could not board it, he had gathered such momentum that, in attempting to stop, his feet went out from under him and the accident happened. Doubtless, the slippery condition of the sidewalk was a contributing cause,- but the plaintiff’s own carelessness was certáinly a concurring .cause. If the plaintiff had actually seized hold of the handle of the car — he attempted to stop when within two feet of it — and had then.lost his footing, We would have no doubt that he would be chargeable with contributory negligence even though the slippery platform .was a concurring causp. If the moving train had not been there, we would agree, I think,that the plaintiff was careless in making a “spurt” down this slippery platform without noticing its condition, in view of the conditions following a sleet storm which are observable to every one, and he certainly cannot .excuse his inattention to his surroundings by asserting that his mind was occupied for the timé being with an attempt to do a careless thing.

The judgment and order should be reversed.

Hirschbero, P. 3., Woodward, Jenks and Rich, JJ„ concurred.

. Judgment and order reversed and new trial granted, costs to abide the event.