93 N.Y.S. 316 | N.Y. App. Div. | 1905
This is a statutory action to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant between twelve and one o’clock on the afternoon o'f the 4th day of April, 1903. .The evidence on the part .of the plaintiff tended to show that it was a cold, stormy day, with rain in the morning, followed -by sleet and snow which continued up to the time of the accident; that at a point on tlíé platform of the defendant’s station where passengers;, alight from and'board its trains, north of the^eovered portion of the platform, snow and ice had formed by reason of persons tramping on the snow as it fell, or in some manner, só a's to form a hard, glary, slippery surface a quarter of an inch thick upon .which the plaintiff’s intestate, slipped, falling in front of an approaching train, thereby receiving iniuries from which she immediately died. On the part of the defendant it was
The defendant urges three grounds for reversal of the judgment: First, that the defendant was not shown to have been guilty of negligence ; second, that the plaintiff’s intestate was not shown to have been free from contributory negligence ; and, third, that the verdict is against the weight of evidence.
As to the first proposition," the defendant relies upon the case of Kelly v. Manhattan R. Co. (112 N. Y. 443, and cases therein cited) and upon the case of Rusk v. Manhattan R. Co. (46 App. Div. 100). In each of those two cases a person upon descending from the station of the defendant to the street had slipped upon a formation Of snow and ice on one of the steps of the stairway leading to the street, which, in the Rush case, was the result of a storm'then in progress,- and in the Kelly case was the result of a storm just recently ceased, in the' early hours of the morning, the accident having happened between half-past five and six o’clock; and in this respect the two cases are similar to the case at bar. In each of the two cases, cited it appeared that the defendant had furnished a covered stairway with handrails and in the Kell/y case it appeared that there were pieces of rubber on each step to prevent slipping, and it was held that the situation thus presented was not so obviously
We cannot say from this record that the verdict is against the weight of evidence. Only two witnesses saw the plaintiff go off from the platform ip front of the approaching train; one of these, the motorman of the defendant, testified that she jumped off; the other, who claimed he was. standing upon the platform near the plaintiff, waiting to board the train, testified that she slipped on the ice and fell off; and while his explanation of how he happened to be at this station at this time is not entirely satisfactory, he is corroborated as to the fact of his being there and as to the condition of the platform where the plaintiff’s intestate is claimed to have slipped, by another witness. - -
Reliance is placed by the appellant upon the exclamation, said to have heen made by the sister of the intestate upon hearing a newspaper paragraph read-, that evening describing' the accident,-“ Oh my, there is something that sounds like Mary,” as tending to support the defendant’s theory of suicidé, indicating that the friends of the intestate were apprehensive that such an event might occur. This would have some force if the record disclosed what the. paragraph read contained. If it contained a description of the deceased, the exclamation would be accounted for upon a different theory than that urged by the appellant.
. It is- also claimed that the pocket book, hat, hatpins, and two side-combs of the intestate were found upon the platform from which she either jumped or slipped, and it is* claimed that this tends strongly to support, the appellant’s contention. This also would have some force if it clearly appeared, as it does not, what was the exact location and position of these articles when found: The witness finding them testified that they were “in a row as if they :had
The judgment'and order should be affirmed, with costs.
Present—Hibschbebg, P. J., Babtlett, Jenks, , Rich ' and Milleb, JJ.
Judgment and order unanimously affirmed,, with costs.