
    ROSE v. NASSAU ELECTRIC R. CO. et al.
    (Supreme Court, Appellate Division, Second Department.
    December 30, 1908.)
    Appeal from Trial Term, Kings County. Action by George W. Rose against the Nassau Electric Railroad Company and another. From a judgment for plaintiff, and from an' order denying a new trial, defendants appeal. Affirmed.
    D. A. Marsh, for appellants.
    Frederick S. Martyn, for respondent
   PER CURIAM.

Judgment and order affirmed, with costs.

GAYNOR, J.

(dissenting). At Thirty-Sixth street in the borough of Brooklyn the downtown surface cars on Fifth avenue transfer passengers to‘the elevated or overhead railroad, if they wish it and the cars stop at or near the elevated railroad stairs for that purpose. The distance from the car track to the curb is 13 feet 7½ inches. The plaintiff got out of the car to transfer, and as he walked to the curb he slipped on ice and fell. His head was near the curb, one foot from it, as he lay prone after falling. The defendant has been held liable under a charge that is quite difficult to define. “The railroad company was not burdened with the duty of keeping the whole width of .13 feet 7½ inches free for use and free from the smoothness of ice,” it says. It does not say just how much of that distance, viz., from the car to the curb, it was burdened with the duty of keeping free from ice, but the charge leaves a distinct though indefinite implication of some duty in that regard. The defendant had no such duty. If it had such a duty at that point, then it would have it at every crossing or -stopping place, and we all know that it has no such duty. The judgment should be reversed.  