
    Thomas F. McGearty, Respondent, v. The Manhattan Railway Company, Appellant.
    
      Negligence — elevated railroad allowing its platform to become so crowded that a passenger is pushed off into the street.
    
    An elevated railroad company which, after its platform is full, continues to sell tickets and allows passengers to go upon its platform in such numbers as to crowd a passenger already there forward, and off from the front edge of the platform, on which there is no protecting rail, is liable for the injury thus occasioned to him; such liability does not rest upon the fact that the platform was insufficient to accommodate ordinary traffic, or that the structure as such was defective.
    Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of April, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of April, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      This appeal was transferred from the first department to the second department.
    
      Joseph H. Adams and Julien T. Davies, for the appellant.
    
      Edgar J. Natham and Francis L. Wellman, for the respondent.
   Pee Cueiam :

The action is to recover damages for personal injuries sustained by the plaintiff, occasioned by his being crowded from the platform by the passengers assembled at the defendant’s elevated station at Grand street in the city of New York, which caused the plaintiff to fall into the street below. The evidence given upon the trial was conflicting, the defendant’s testimony tending to establish that the plaintiff fell from the platform while trying to board the rear car of a moving train. But upon this point the evidence warranted the jury in finding that the cause of the plaintiff’s falling from the platform was on account of the overcrowding of the platform with passengers waiting to take the train for transportation over the defendant’s railroad, and also to find that this condition was created by the negligence of the defendant.

It may be conceded that defendant’s elevated station at Grand street is properly constructed and is sufficient in extent to answer all of the ordinary requirements for which it is used, and accommodate passengers who assemble there for the purpose of boarding the defendant’s trains. But the theory upon which the case was tried and submitted to the jury, and upon which the negligence of the defendant was predicated, did not necessarily involve this question. The negligence of the defendant was based, not upon any infirmity in the structure as a structure, but upon the character of its use at the particular time. It was sufficient to accommodate ordinary traffic, for so fast as the platform filled with passengers they were removed by the trains of the defendant, which stopped at the station for that purpose at frequent intervals. It is easy to see that, as there was a constant accumulation of passengers upon the platform unless they were removed by the trains, the platform of the station would become overcrowded, and that such overcrowding might render the place unsafe. That was shown to be the condition in this case. The trains did not remove the passengers as fast as they accumulated, and the defendant continued to sell tickets and admit passengers to the platform. When the plaintiff entered upon the platform it was a safe place, and he had the right to ' assume that no.part of it would be rendered unsafe by any act of the defendant. The obligation imposed upon the defendant was to take reasonable care in securing the safety of the passenger while upon its premises, and to see that he was exposed to no unnecessary danger while there. The defendant must he assumed to have known the capacity of its platform and when it had admitted passengers to the extent of such capacity. If, when having done this, the passengers were not removed by its trains it became its duty to permit no more to enter. It had no more right to accumulate a crowd at the rear, which, ¡Dressing forward, would precipitate those at the edge of the platform into the street, than it would have the right to go upon the platform and push them off by physical force. The jury were authorized to find that the defendant overcrowded the platform upon this occasion, and that such overcrowding was the cause of plaintiff’s fall into the street. Upon the trial evidence was received- to show that there was no guard rail at the edge of the platform similar to those placed at other stations upon the defendant’s road. It is true that this evidence bore upon the character of the construction and whether sufficient or not, but it also bore directly upon the question of defendant’s negligence in overcrowd' ing the platform. If there was no guard then it is easy to see that persons at the extreme edge might be crowded off, when, if the rail was there, they could not he. The absence of a rail, therefore, had' direct relation to the number of persons which might he safely' admitted to the platform before removal.

The question of the plaintiff’s negligence was also a question for the jury upon the evidence.

The charge of the court was temperate, fair and full, covering every question in the case and protecting every right to which the defendant was entitled.

The judgment should, therefore, be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  