
    Maggie Fox, Resp’t, v. The Mayor, etc., of New York el al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    1. Negligence—Railroad—Opening between cab and platform.
    Plaintiff, while leaving a Brooklyn bridge ear at the station, which had a curved platform, was shoved by someone and fell into an opening between the car and platform, which she testified was eighteen inches, while defendants’ witnesses testified it was eleven, and a half inches. There was a conflict as to whether the platform was sufficiently lighted, and it appeared that a large number of persons had alighted from the cars under similar circumstances without injury. Held, that under the circumstances the mere existence of such an opening was not negligence.
    3. Same—Request to charge.
    In such case the court refused to charge on request that if the jury believed that the platform was lighted with electric lights as testified to by defendants’ witnesses, the verdict must he for defendant, and that there was no evidence that the space between the platform of the car and station was unnecessarily wide, and that the only question which they might consider was whether it was properly lighted. Held, error.
    
      Appeal from judgment entered upon verdict recovered at circuit and from order denying motion for new trial.
    
      Theodore Connoly, for app’lt; J. D. Bell, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for injuries alleged to be sustained by the plaintiff upon alighting from one of the cars running over the Brooklyn bridge.

It appears from the evidence that the plaintiff was a passenger upon the cars of the bridge upon the 2éth of January, 1890, havirfg boarded the cars about half-past six in the afternoon, and as she was about to step off the car, on its arrival and stoppage at Brooklyn, she received a shove, and fell into the open space between the car and the platform, and was thereby injured.

Evidence tending to show that the platform was improperly lighted was given upon the part of the plaintiff; and it was also claimed that the opening between the platform of the car and the bridge was of an improper and dangerous width.

It was shown that the bridge opposite to the platform of the car where the car stopped was on a curve, and that necessarily the centre of the car was much nearer to the platform than the two ends. It further appears that for a considerable period of time the plaintiff had been accustomed to cross the bridge daily. But it was claimed by the plaintiff that, upon previous occasions, she had gotten off the middle of the car, which was, necessarily, nearer the platform than the end from which she alighted at the time of the happening of the accident in question. Evidence in reference to the distance from the ends of the car to the platform was conflicting; and also as to the condition of the lights the testimony upon the part of the plaintiff being that the ends of the car were from eighteen to twenty inches from the platform, and the middle from four to seven inches, whereas upon the part of the defendant the evidence was to the effect that the ends were within eleven and one-half inches of the platform, and the centre within one inch thereof. With respect to the lighting, also, the evidence of the plaintiff was that it was dark, so that you could not see on getting off the cars, and upon the part of the defendant that the platform was brilliantly illuminated by electric lights. The defendant showed that a large number of persons had both boarded and alighted from the cars, and that, under the conditions existing at the time of the happening of the accident, no one had ever been injured from a similar cause.

The court thereupon submitted the question of the liability of the defendant to the jury, who found a verdict in favor of the plaintiff, and denied a motion for a new trial. And from the order and judgment thereupon entered this appeal is taken.

It has not been considered necessary in the foregoing statement of facts to enter into an examination of the details of the testimony, but simply to present the salient features which bring up the question which it is considered necessary to review; which is whether there was any evidence upon which negligence could be predicated against the defendant, because of the distance between the cars and the platform upon which the passengers alighted.

This question has been considered upon various occasions by the-courts; and the rule which has been adduced therefrom is that a machine or structure not obviously dangerous, which has been in daily use for years, and has uniformly proved adequate, safe and convenient, may be continued in use without the imputation of negligence.

Applying this rule to the case at bar, it would seem that in view of the large number of persons passing over the Brooklyn bridge upon the cars running thereon, who had alighted from-those cars without accident, the mere existence of an opening of the width described by the witnesses was not, of itself, negligence.. That some opening had to exist is manifest, because the car and. the platform could not possibly make a perfectly close connection. The force of this rule was sought to be overcome by showing that upon the elevated' railways in this city certain means had been resorted to by which this space was bridged under certain circumstances. But there was no evidence that any such appliance was in general use; and there being nothing to call the attention of the defendant to the fact that the structure as it stood was insecure or unsafe, there was no duty calling upon the defendant to adopt this peculiar device, which, so far as appears, i» only used by one corporation.

The principles laid down in the case of Ryan v. Manhattan, 121 N. Y., 126; 30 St. Rep., 624, seem precisely to cover the questions involved in the case at bar. In that case, the ground upon, which a recovery was claimed was that the defendant had left an-improper and dangerous opening in the pathway of its passengers without any necessity therefor; the court stating that the question presented was whether the opening into which the plaintiff stepped was or was not wider than necessary, so much so as to produce danger to the passengers. After alluding to the peculiar-conditions attending the case then under discussion, the court said: “ Thousands upon thousands, often in a hurry, and thronging in crowds, had stepped over this opening without harm or danger.” And the court asked the question : “ How is it possible to say that an opening, thus tested by years of use, was-negligent in its origin or maintenance? Indeed, the plaintiff adds to the force of this fact She had taken the cars at that, point a hundred times or more, and gives unconscious testimony to its safety by seeking to show that, on this one occasion, a change had occurred and the opening was wider than usual. Her whole case depends upon that allegation, and its burden rested upon her. She meets it by a guess. In her testimony she estimated by the eye that the width of the opening was-fourteen to fifteen inches. She did not notice the opening at all until just as she was lifted out of it, and was looking straight at the car and not at the opening when she stepped in. This was contrary to her habit, and without any apparent reason. Ho one else stepped into the opening. The other passengers seem to have found no difficulty and encountered no risk. She alone, paying no attention to her steps, went blindly into-the opening. If she had exercised even ordinary care, there is-no reason to suppose that her safety would have been endangered.”

It is sought by the evidence in the case at bar to vary it from that of the case cited, by the claim that the plaintiff was jostled as she was leaving the car, and thus fell into the opening. But this in no way makes the act of the defendant negligence in maintaining the cars and platform in the condition which for a large number of years had been found to be a sufficient provision for the safety of passengers. Thousands had passed over this opening without the slightest inconvenience, and as every passenger upon alighting from the car is bound to know that some space must exist between the platform and the car, it is their duty to take some precautions in order that they may not step therein.

It would seem, therefore, that the construction of the platform and cars formed no ground for a recovery; and the only evidence upon which a recovery could be had was that the platform was not properly lighted, bringing the case within that of Boyce v. Manhattan, 118 N. Y., 314; 28 St. Rep., 692.

The defendant requested the court to charge that, if the jury believed that the platform was lighted on the night of the accident with electric lights, testified to by defendant’s witnesses, the verdict must be for the defendant. The defendant also requested the court to charge that there was no evidence that the space between the platform of the car and the station was unnecessarily wide ; and that the only question which the jury might consider was whether it was properly lighted.

It was error for the court to refuse these two requests, as it enabled the jury to speculate upon the duties of the defendant in regard to the running of their cars and the construction of their platforms, which question should not have been left to it.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.

Follett and Barrett, JJ., concur.  