
    Mary Wertheimer, an Infant, Etc., Plaintiff-Respondent, v. The Interborough Rapid Transit Company, Defendant-Appellant.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Carriers — Carriage of passengers — Liability for personal injuries — Condition and care of premises — Duty to warn passengers.
    The timely utterance by a railway guard of the words “Watch the step ”, given in such a tone that they would naturally be heard and understood by passengers attempting to board a train and giving ordinary attention to what is going on around them, is a full discharge of the carrier’s duty in that regard; and, in an action for personal injuries received from falling between a station platform and the platform of a car, a refusal to charge that, if the guard of the train, as he testified, said “ Watch the' step ” in such a manner that a person paying ordinary attention to what was going on about her would naturally hear him, the defendant fulfilled its duty to plaintiff in respect to warning and was guilty of no negligence, is error, although plaintiff and her witnesses testified that they did not hear any warning.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, fourth district, borough of Manhattan, rendered in favor of the plaintiff.
    
      Charles A. Gardiner, for appellant.
    Henry Waldman, for respondent.
   Per Curiam.

The plaintiff claimed for injuries from falling between the station platform and the platform of a car which she was attempting to board in the subway, at Fourteenth street, on September 9, 1905. At the close of the case the trial justice, after charging that the defendant was not negligent because of the existence of the space between the platform of the car and of the station, charged that “ it becomes the duty of the defendant to give warning or notice of its existence, and the plaintiff's claim is predicated upon the failure of the defendant to give a sufficient warning * * *. It does not make any difference whether the plaintiff actually heard the warning, providing it was given.” The justice, however, refused to charge the following requests made by counsel for the defendant: “ I ask your Honor to charge the jury that if the guard upon the train uttered the words ‘ Watch the step ’ in such a manner that a person paying ordinary attention to what was going on about her would naturally hear it, the defendant fulfilled any duty which it owed to the plaintiff in respect to warning.” “ I ask your Honor to charge the jury that if the guard on the train uttered the words ‘Watch the step” in such a manner that a passenger paying ordinary attention to what was going on about her would naturally hear it, the defendant is guilty of no negligence.” The defendant excepted. The plaintiff and her witness testifying that they did not hear any warning and the guard of the train testifying that he gave such warning, the refusal of the trial justice to charge these requests was error; for “ The timely utterance of cautionary words in such a tone and of such a character that they ought to be, and naturally would be, heard and understood by passengers giving ordinary attention to what is going on around them, is a full discharge of the obligation which the law imposes upon the common carrier under such circumstances.” Langin v. New York & Brooklyn Bridge, 10 App. Div. 529, 532. The judgment should, therefore, he reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Amend, JJ., concur; MacLean, J., talcing no part.

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