61 N.Y.S. 384 | N.Y. App. Div. | 1899
This action was brought to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant. The plaintiff had a verdict of $2,500, and from the judgment entered thereon the defendant has appealed. At the trial, at the close of plaintiff’s case, the defendant moved for a dismissal of the complaint, which motion was denied, and the defendant excepted. After the denial of this motion, the defendant rested, without offering any evidence.
The question, presented, therefore, is whether, giving to the plaintiff the benefit of every inference that can fairly and legitimately be drawn from the testimony offered by her, it can be said that the defendant is legally liable for the injuries which she sustained. This testimony was to the effect that on the 26th of February, 1896, the plaintiff, for the purpose of going to Rector streqt, entered one of the defendant’s cars at Ninety-Third street; that, when the car ar
“When we got to the Rector street station, we got off the train, and went down the platform, and I noticed that it had snowed a little, and that there was some snow on the upper platform; so I thought, 'Well, I better be careful;’ so we started down the steps, and I waited a little until I got hold of the rail. I took hold with my right hand, gathered my dress in my left hand, and started down the steps, and just as I stepped off the last step, at the bottom of the first flight of stairs, my left foot slipped, and * * * it turned right under, * * * and broke one bone near the ankle joint, * * * and the outside bone a little further up from the ankle joint.”
She also testified: That, after she fell, she was helped up by her brother, and placed on one of the steps of the stairs, where she remained while he went to the street to get a carriage to take her home. That while she was sitting on the step she noticed the place where she fell, and that “it was covered with ice, and was slippery”; and “just as you step off the place there was a worn-off place,—a little kind of scooped-out place. I should judge it was about half an inch below the normal level. I don’t know how deep the ice was, except it covered the boards of the platform. Well, it seemed to cover the whole platform,—that whole little landing.” That she could not say whether the depression was one-eighth, one-fourth, or three-eighths of an inch thick, but there was ice over it, or she would not have fallen. Her brother, Frank T. Rusk, testified that he was with the plaintiff, and saw her slip and fall; that he noticed the depression, and “that the platform around there, and at that part of it, so far, at least, as I observed it at all, was icy,—covered with ice”; that he could not say how thick the ice was, “except that it was thick enough so that it was, so far as I know, the floor, the treads, the planks, did not show through at any place, and it was all ice” which, from the appearance, he should judge had recently formed; that it was snowing at the time, and he observed a little snow on the platform. The only other witnesses who testified as to the condition of the platform and stairs at the time the plaintiff was injured were Edward G. Meeker and Gilbert M. Hargrave. The former stated that, after the plaintiff fell, he went to her assistance, and then observed the condition of the platform, and that it was in “an icy condition, and the landing was worn just at the bottom of the last step, worn a little hollow,—was worn out,—and, in that hollow and adjacent to it, was icy. This ice was worn smooth. I can’t say how thick that ice was. I could not say, either, how extensive the ice was over
It is apparent, from a fair consideration of all the testimony offered by the' plaintiff, that the proximate cause of her injury was the ice and snow; that this, and not the depression, was the cause of her slipping. • She was not entitled to recover, unless she established to the satisfaction of the jury, by a fair preponderance of evidence, that her injuries were due to some act of commission or omission on the part of the defendant, and for which it was legally liable. In other words, before she could recover, she was bound to establish that the defendant’s negligence was the proximate cause of her injuries, and this, we think, she failed to do.
It was, as we have seen, snowing at the time, so that the only inference which can be drawn from the testimony is that the presence of the ice and snow was due to the storm which was then progressing. The defendant, under all of the authorities, had a reasonable time after the snow fell and the ice formed to remove it. Kelly v. Railway Co., 112 N. Y. 443, 20 N E. 383. It was not liable because it did not sprinkle “sand, ashes, or sawdust” upon the ice and snow. It was not so obviously dangerous to travelers that it was bound to anticipate that injury might be sustained by reason of it. Indeed, the plaintiff herself testified that, in a space of 10 or 15 minutes, she saw several hundred people pass over the same place, and, so far as appears from her testimony, in not a single instance did she see one of them slip or fall. In Kelly v. Railway Co., supra, a passenger was killed by slipping and falling on a station stairway of this same defendant. Snow had fallen during the night, and it was there claimed that the defendant was liable because it did not cover or sprinkle, upon the snow and ice upon the stairs, sand, ashes, or something of that character. Judge Peckham, in delivering the opinion of the court, referring to this claim, said: “The failure to throw ashes or sawdust, or something of that character, upon the steps during the storm, cannot be regarded as negligence, because the continuance of the storm would render the steps as slippery as before.” We are therefore clearly óf the opinion that the defendant was not liable for an injury sustained by reason of the snow and ice, and it was not liable on account of the depression in the platform, because as to that the evidence did not establish that the injury to the plaintiff would not have been sustained except for that cause; in other words, that the depression in the platform was the proximate cause of her injury. In Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, it was said: “When damages claimed in an action are occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which he is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause, and the jury must not be left to mere conjecture, and a bare possibility that the damages were caused in consequence of the act of the defendant.” And to the same effect are Taylor v. City of
It follows that the judgment and order appealed from must be • reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.
