
    Michael M. Creenan, Respondent, v. International Railway Company, Appellant.
    Fourth Department,
    July 12, 1910.
    Railroad—negligence — injury to passenger at place of transfer—duty to preserve safe path.—accumulation of snow at side of track — facts not justifying recovery.
    A street railroad which issues a transfer from one car to another does not fulfill its duty to passengers merely by furnishing a suitable place to alight; it must also provide a reasonably safe way from one car to the other.
    A passenger who after alighting from a car to make a transfer was struck by the overhang of the car when it founded, a curve, cannot hold the railroad liable for negligence although at a distance of eight and oné-half feet from each side of the track snow had been piled two feet high, if in fact there was a clearance of over three feet at the point where the car had the greatest overhang', so that had he. kept at a sufficient distance he could have walked in ' . safety. ■ • - ’ • '.
    Moreover, the defendant cannot he charged with negligence under such circumstances, where there was a. beaten path through .the snow banks to the sidewalk which the plaintiff could' have' used, even though the path was- not • constructed by the railroad;
    Appeal . by the defendant, the International 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 Erie on the 5th day of January, 1910, upon the verdict o'f, a. jury, for $3,500, and also from an order entered in said clerk’s' office on the same, day denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles B. Sears, for
    
      George H. Kennedy, for the respondent.
   Spring, J. :

In the . forenoon of the 27th of February, 1909,. the plaintiff boarded a Hoyt street car on the defendant’s surface road-, in the city of Buffalo, oound for Clinton Market,-where he was employed. He paid, his fare and received á transfer ticket which entitled .him to change, to' a Grant- street car at Normal avenue. The car in its route traveled west on. Connecticut street, stopping before it reached Normal avenue at its usual stopping place, arid the plaintiff alighted, according to the ■ directions contained, in order that he might pass '■ ' overto-Normal avenue, which'was. an intersecting street .with Connecticut street, and take a south-bound Grant street car to his destination, - - - . •

. There was only one car track on Connecticut street, and the connection with the Normal avenue street line by the-Hoyt street car was made by passing over a curve' to that avenue. Several passengers were'received after the plaintiff- alighted from the rear end of the car, and then' the usual signal was-given by the conductor to the motorman to go ahead, and the car proceeded around the curve to Normal avenue.- The plaintiff in. the meantime waikéd along in the street close to .the car, and as it swung out- to make the curve he was hit and knocked down by the rear end of the car and very seriously injured. ■ ’

There was* a ridge of snow from one. to two feet, maximum height — witnesses varying in their estimate — between the street curb and. the northerly or nearer car track in Connecticut street, and this distance was from fourteen to fourteen and one-half feet. The snow extended from the curb, sloping toward the car tracks for the space of six feet, leaving a level space between the car track arid the ridge of snow of eight to eight and one-half feet. The ordinary overhang of the car was two and two-tenths feet, and as the car proceeded around the curve the projection increased until, at its maximum, it was five feet. At this point there was, therefore, according to the.great preponderance of the evidence, a clear space between the outermost overhang of the car and the commencement of the snow accumulation of three to three and one-half feet. Assuming, therefore, that the plaintiff was at the precise place of the greatest outward swing of the car at the time he was hit he had ample space to walk and be clear of contact with the car.

The defendant did not fulfill its duty to the plaintiff merely by furnishing him a suitable place to alight from its car. It agreed to transport him as its passenger on the Grant street car and it must accordingly provide a reasonably safe way from one car to the other. The trial judge charged the jury: “ It was the duty of this defendant, the railway, on the occasion in question to take all reasonable care, exercise all reasonable diligence under the circumstances as they existed to see to it that the plaintiff had a reasonable opportunity to get in safety off of the Hoyt street car and onto the Grant street car, and to take that degree of care in seeing to it that while he was going from the one car to the other that this opportunity was continued,” and this instruction did not overstate the obligation of the' defendant to the plaintiff. (Speck v. International R. Co., 133 App. Div. 802.)

If, however, there was the unimpeded level stretch of street between the nearer car track and the snow accumulation of eight or eight and one-half feet extending to the street intersection the defendant did afford a reasonable opportunity for its passengers who alighted from its cars at this stopping place to reach the Normal avenue cars in safety. One or two witnesses testified that the space between the ridge of snow and the car track was about two feet less than that already given, so that there may have been a question pf fact as to the defendant’s negligence.

The evidence shows that the Connecticut street sidewalk in front of the business places on the north side of the street was eighteen feet in width and the snow was shoveled from the entire sidewalk into the street. The defendant ran a snow plow along its track occasionally which pushed the snow onto this north side. The defendant apparently kept no path to the sidewalk for passengers alighting from or going upon its cars at this stopping place. The evidence shows that there were at least two depressions or paths in the snow apparently used by people going to and from the cars to the sidewalk, and the jury may have found that these were adequate for the accommodation of those alighting from the cars and intending to continue their journey on the Grant street cars. The defendant was not called upon to furnish two safe methods of transit for this plaintiff. If the one along the street afforded him a reasonable and safe route to the car he was required to take the duty of the defendant to him was fairly complied with. On the other hand, if there were safe approaches or paths to the sidewalk, whether actually prepared by the defendant or in any other way, and they were readily accessible to the plaintiff, then the defendant provided a reasonably safe method for him to continue his way to the connecting car.

The motorman started the car forward as soon as he received the signal to do so, and the plaintiff did not come within his view, nor did he have any notice that the plaintiff was in the street until after the accident. The conductor went inside the car as soon as the incoming passengers entered and began collecting fares in compliance with his duties. I do not not discover any evidence which tends to fasten any misconduct upon either of these employees.

The plaintiff was sixtv-six years of age, in good health and vigor, and employed as a porter in the Olinton Street Market and accustomed to transfer from the Hoyt to the Grant street cars at this street intersection twice each month, as he testified. In his.narration he said: “I knew the Hoyt car went down Normal. There was a curve in there, but I didn’t think of the curve. I knew there was a curve there. I knew there was a switch there. I got off the rear end of the car. * * *' I didn’t notice the car after I got off. I was looking for the other car. I walked between the bank of snow and the car; thére was only about two feet of a space; I wasn’t more than a foot from the car. I didn’t get to the crosswalks before I was struck. I got about three-quarters of the length of the car before it struck me; about 30 or 35 feet.”

If, as the weight of the testimony shows, there was ample space for him to walk along the street adjacent to the car without danger of the overhang at the point of the greatest projection, he was guilty of contributory negligence in failing to keep further from the car. (Matulewicz v. Met. St. R. Co., 107 App. Div. 230; Waters v. United Traction Co., 114 id. 275; Riddle v. Fortysecond St., etc., R. Co., 173 N. Y. 327.)

Apparently he did not have in mind that the car would continue to swing into the street in making the curve, although the slightest observation of the course of the car would have disclosed the situation to him. He does not claim that he was not aware of the increased projection into the street of the rear end of the car as it made the curve. He simply was temporarily unmindful or forgetful of it.

The defendant’s counsel requested the trial court to charge as follows : “ I ask your Honor to charge the jury that if there was space for the plaintiff in the exercise of reasonable care to walk betwéen the pile of snow and overhang of the car as it passed around the curve, the plaintiff was guilty of contributory negligence and cannot recover.” And again : “ I ask your Honor to charge the jury that if there was reasonable space for the plaintiff in the exercise of care to walk between the pile of snow and the car as it passed around the curve the defendant was not guilty of negligence in starting the car after the plaintiff had alighted from the car.” .The court declined to charge “ in that language,” and exception was taken. The evidence warranted the jury in finding that there was “ reasonable space ” for the plaintiff to walk between the snow and the car, and without any danger from its overhang, and the requests should have been complied with. The errors were material and call for a reversal of the judgment. A new trial should be granted.

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  