
    BARTNIK v. ERIE R. CO.
    (Supreme Court, Appellate Division, Second Department.
    January 10, 1899.)
    1. Carriers—Personal Injuries—Contributory Negligence.
    It was a question for the jury whether plaintiff was guilty of contributory negligence, when he stood at the side of the foot passenger’s gangway of a ferry while the incoming passengers were leaving the boat, and was injured by being struck by a rod which dropped on the breaking of a chain used to hoist the gangway, if, as a fact, such place was not railed off from the passengers’ way.
    
      2. Same—Res Ipsa Loquitur.
    The breaking of a hoisting device of a ferry gangway, whereby a person on the gangway was injured, makes a prima facie case of negligence against the ferry company.
    8. Same—Scope op Rule.
    The doctrine of res ipsa loquitur is not restricted in its application to carriers to injuries to persons who assume the character of passengers.
    4. Same—Prima Facie Case—Rebuttal.
    A prima facie case of negligence made out by the breaking of a ferry gang hoist is not conclusively rebutted by evidence that it had been at intervals inspected.
    5. Same—Standard op Care—Ferry Gangway.
    In respect to a ferry gangway, as much as to the ferry itself, the ferry company must exercise the utmost human skill, care, vigilance, and foresight for the protection of passengers.
    6. Trial—Striking Testimony—Relevant in Part.
    A motion to strike a witness’ testimony regarding the condition of plaintiff’s leg at the time of trial was too broad, where the leg was broken again after the injury sued for, but some of the testimony applied to the effects of the first fracture, and the court had instructed the jury that defendant was in no wise responsible for the second one.
    Appeal from trial term, Kings county.
    Action by John Bartnik, an infant, by Francis Gottsberger, his guardian ad litem, against the Erie Railroad Company. • From a judgment for plaintiff-, and an order denying a new trial, defendant ap: peals.
    Affirmed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
    Frederic B. Jennings (Charles MacVeagh, on brief), for appellant. William M. Mullen, for respondent.
   CULLEN, J.

The plaintiff entered into the ferry house of defendant for the purpose of crossing from Jersey City to New York. As the boat from New York came into the slip, the gates in the ferry house were raised, and passengers were allowed to go on the bridge. To avoid the throng of persons who were coming from the boat, the plaintiff stepped to the side of the gangway for foot passengers, and stood in front of the wheel that is used in fastening the boat to the bridge. While there, a link in a chain which supports in part the weight of the bridge broke, and a rod to which it was attached fell ■on the plaintiff, breaking his leg. The action is brought to recover damages for that injury.

The appellant contends that the plaintiff was guilty of contributory negligence in assuming the position in which he was at the time of the accident. The evidence for the defendant tended to show that the place where the plaintiff stood was railed off from the foot passengers’ gangway. This was denied by the plaintiff. We think that the question of contributory negligence was one of fact for the jury, in case they found there was no railing there at the time. This case is very similar to that of Hazman v. Improvement Co., 50 N. Y. 53. In that case the plaintiff, to avoid the crowd of outgoing passengers, had stepped on the stringer that separates the gangway for teams from that for foot passengers. While in this position, he was injured by the shaft of a wagon, the horse drawing the vehicle having slipped and fallen in consequence" of the improper condition of the bridge. It was held that it was not contributory negligence, as a matter of law, for the plaintiff .to stand on the stringer. The court said: “It was not necessarily or ordinarily a place of danger, and the plaintiff had no reason to apprehend such an accident as occurred.” So, in this case the plaintiff had no reason to expect or anticipate the breaking of the chain or the fall of the iron rod. It may be that in some respects the position of the plaintiff was naturally dangerous. He might properly expect to receive greater shock there, from the impact of the incoming boat on either the ferry rack or bridge, than if he stood further back. Had he been thrown into the water, or otherwise injured from such an occurrence, it might well be argued that he assumed the risks of his position. But the accident that happened to him in this case was the very thing there was no reason he should anticipate or foresee; and, as long as he was not a trespasser in assuming his position, the question of his negligence was for the jury.

The only evidence on the part of the plaintiff to establish the negligence of the defendant was proof of the occurrence of the accident itself. The appellant argues that the doctrine of res ipsa loquitur only applies “when the relation of carrier and passenger exists, and the accident arises from some abnormal condition in the department of actual transportation.” We think that even within this rule the plaintiff made out a prima facie case. But the proposition is incorrect. In the leading case where the doctrine of res ipsa loquitur was applied, there was no contractual relation between the parties (Mullen v. St. John, 57 N. Y. 567); and this court has recently held that the relation between the parties has no bearing on the applicability of the rule (Jones v. Railway Co., 18 App. Div. 267, 46 N. Y. Supp. 321).

In the latest case in the court of appeals,—that of Hogan v. Railway Co., 149 N. Y. 23, 43 N. E. 403,—the plaintiff was driving a coal .cart on the street under the elevated railroad, when an iron bar fell from that structure, and injured him. Men were working thereon at the time. It was held that the evidence raised the presumption of negligence; and it is said by Judge Bartlett:

“This being so, it is further assumed that buildings, bridges, and other structures properly constructed do not ordinarily fall upon the wayfarer. So, also, if anything falls from them upon a person lawfully passing along the street or highway, the accident is prima facie evidence of negligence, or, in other words, the presumption of negligence arises.”

27or was the evidence given on behalf of the defendant to rebut the presumption of negligence conclusive. The defendant proved an inspection of some land, repeated at intervals; but the character of the inspection and its sufficiency might properly be the subject of criticism. The credibility of the witnesses was also to be considered. On the whole, we think the question was properly submitted to the jury.

The learned trial court charged that the defendant was required to exercise the utmost human skill, care, vigilance, and foresight for the protection of its passengers, and that the rule applied as well to the apparatus and appliances of the bridge as to the machinery of the ferryboat itself. To this the defendant excepted. We think the charge was correct, as applied to the case before us, and well supported by the authorities. Carriers of passengers are not, in every branch of their service, held to this strict accountability. But the rule has never been relaxed as to the condition of the machinery, appliances, cars, and boats, or other vehicles of transportation. Stierle v. Railway Co., 156 N. Y. 70, 50 N. E. 419. The defendant’s bridge should not be considered as merely an incident to its principal duty of transportation, and as similar to a platform or waiting room, but as an appliance used in the very transportation itself. It seems to have been so considered in Hazman v. Improvement Co., supra. An insecure condition of the bridge, or its improper operation and adjustment, might lead to most serious accidents. So that, even if not considered as technically an appliance in the transportation itself, its improper condition or management would present a “situation from which grave injury might be expected, and which therefore imposed upon the carrier’s servants the duty to exercise the utmost skill and foresight to avoid it.” Stierle v. Railway Co., 156 N. Y. 684, 50 N. E. 834, opinion on motion for reargument.

The defendant’s motion to strike out the testimony of the witness Dr. Pfieffer was too broad, and was properly denied. The plaintiff broke his leg a second time. For this the defendant was in no wise responsible, and so the trial court charged. But that did not render all testimony as to the condition of the plaintiff’s leg at the time of the trial incompetent. So far as the testimony of the witness related to the condition of the leg at the point of the first fracture, and due to - that cause, it was strictly relevant.

The judgment and order appealed from should be affirmed, with costs. All concur.  