5 N.Y.S. 684 | N.Y. Sup. Ct. | 1889
This action was brought to recover damages for personal injuries received by the plaintiff by slipping upon ice upon the platform of the defendant’s station, and, in falling, striking against an iron pillar, and thus injuring himself. This case was tried.once before, and came up to this court upon appeal, (1 N. Y. Supp. 673,) and we see no reason now to change the opinion then expressed, that there was enough of competent proof to sustain the verdict, although we were compelled to reverse the judgment because of an error in the reception of evidence. It is true that there has been called to our attention upon this appeal a decision of the court of appeals which had not been rendered upon the argument of the previous appeal, and although it may be diliicult to reconcile entirely'the reasoning of the court in the last case cited (Palmer v. Railway Co., 19 Code Rep. 493) with some previous decisions, yet it seems to us that in construing the particular facts of that case it should not be held to overrule the authority of previous eases, which seem to be entirely applicable to the facts disclosed by the evidence in the case at bar. The evidence showed that there had been a considerable fall of snow the day before the happening of the accident, and that this snow had been attempted to be removed by shovels or brooms. It also showed that it was snowing and sleeting, and the wind blowing hard, on the day of the accident, and that the platform upon which the plaintiff was compelled to alight from the defendant’s cars was slippery,'—whether from snow or ice is not particularly material; and there was also evidence tending to show that no sand or ashes had been put upon the platform for the purpose of ameliorating its dangerous condition. Upon this condition of the evidence it seems to us clear that the defendant was not entitled to a dismissal of the complaint. In the case of Weston v. Railway Co., 73 N. Y. 595, it was held that the defendant was bound to be alert during cold weather, and see whether there was ice upon the platform, and to remove it, or make it safe by sanding it, or by putting ashes upon it, or in some other manner. Consequently, upon the fact being shown that this platform was in this slippery condition, and that no means had been used by either sanding or putting ashes upon the platform to make it safe for passengers who were compelled to land upon it, a prima facie case was made out against the defendant. It is true that in the opinion in the case of Palmer v. Railroad Co., above mentioned, the learned judge who delivered the same makes use of language which seems to be inconsistent with the rule above laid down. But we think that until it is distinctly held by the court of appeals that no such diligence is to be used upon the part of railroad companies in respect to the maintenance of that part of the platform upon which the passenger is bound to alight, as to which he has no
