
    Josephine Boyce, Resp't, v. The Manhattan R. Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1890.)
    
    1. Common carrier—Negligence—Elevated road.
    Defendant’s train on the elevated road in New York city drew up at a. platform built on a curve, so that there was an open space between the steps of the car and the edge of the platform. The platform was insufficiently lighted, so that the space was in the shadow, and the plaintiff stepped into the hole and was injured. Reid, that by stopping its trains at the point in question defendant invited the passengers to alight, and was thereby charged with the duty of using due care to provide proper and safe means of getting from the platform of the cars to the platform of the station.
    2. Same—Contributory negligence.
    Plaintiff, under the circumstances, was under no obligation, as matter of law, to look before she put her foot down, and it was a question of fact for the jury as to whether she should have been more vigilant, and whether if she had looked she could have seen the hole, in the surrounding darkness.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment in favor of the plaintiff entered upon the verdict of a jury, and also affirming an order denying a motion for a new trial.
    This was an action to recover damages for personal injuries caused by the alleged negligence of the defendant.
    
      Samuel Blythe Rogers, for app’lt; T. Henry Dewey, for resp’t.
    
      
       Affirming 22 J. & S., 286.
    
   Vann, J.

The defendant, as a carrier of passengers, operates a line of elevated railway extending from Harlem to South Ferry in the city of New York. The east platform of the South Ferry station is built on a curve and each car, as it stops there, touches the curve at a tangent, so that the middle part is within one or two inches of the platform. The result of this is an open space between the steps of the car and the platform of the station, several feet long and fourteen inches wide. On the 25th of January, 1885, the plaintiff was a passenger upon a train of the defendant which reached South Ferry at about half past six in the evening. Accompanied by three friends she left the car and attempted to reach the platform of the station. She was not familiar with the locality, having never landed there before, and the space between the steps of the car and said platform was open and unguarded. Nothing was put across the hole for passengers to step on as they alighted and no warning or assistance was given by the persons in charge of the train. If the passengers saw the hole, they could step across it, but unless they saw it there was nothing to-prevent them from stepping into it. As the jury is presumed to have found, upon sufficient evidence, there was but a single light from one end of the station to the other and that was at a point quite remote from the open space in question. While some light came through the car windows it did not reach the hole, which was in the shadow of the end and lower part of the cars. The plaintiff was the third in the little procession of four as it approached this spot Her brother, who was in advance, stepped off first and just reached the edge of the platform of the station with the tip of his right foot and was forced to make a quick step with his left foot in order to save himself from falling into the open space. As he turned to give warning to the others he was pushed forward by his younger sister, Bhoda, who closely followed him and whose dress covered the hole so that it could not be seen. When the plaintiff, who was just behind her sister, attempted to cross, she stepped into the open space, fell through the hole and was severely injured. There was evidence tending to show that it was so dark that the hole could not be seen.

It is not essential to inquire why the railroad was constructed with so sharp a curve at the place where this accident occurred, nor whether the defendant is responsible for the way that the south ferry station was built. By stopping its trains at the point in question it invited the passengers to alight, and was thereby charged with the duty of using due care to provide proper and safe means of getting from the platform of the cars to the platform of the station. Even if the open space was necessary, owing to the peculiarities of the location, it was not necessary to leave it unguarded or unlighted. Some precaution, adapted to the situation, could have been used, such as throwing a plank across or stationing a trainman to warn and assist passengers in alighting. At least the unguarded hole could have been well lighted, so as to be easily seen, and the passengers thus enabled to avoid the danger. We think that the evidence required the submission of the case to the jury for them to determine whether, under all the circumstances, the defendant was guilty of negligence that caused the injuries sustained by the plaintiff. Smith v. N. Y. & H. R. R. Co., 19 N. Y., 127; Hulbert v. N. Y. C. R. R. Co., 40 id.,145 ; Sexton v. Zett, 44 id., 430; Weston v. N. Y. Elevated R. R. Co., 73 id., 595; Hoffman v. N. Y. C. & H. R. R. R. Co., 75 id., 605; Dobiecki v. Sharp, 88 id., 203.

The statement of facts already made is a sufficient answer to the claim of the defendant that the plaintiff was guilty of contributory negligence, as matter of law, and that no question in that regard was presented for the consideration of the jury. In the cases cited in support of this position, the person injured knew, or should have known, of the danger to be encountered, and hence was required to give general evidence that he exercised proper care, but in this case the plaintiff was ignorant of any circumstance requiring the use of special care, and hence was relieved of the necessity of showing that she used special cara While the actual situation was dangerous, the apparent situation was free from danger. With her limited knowledge of the facts, what should she have done that she did not do? Ordinarily, what everybody does is all that anybody need do. Unconcious of danger, she did what the other passengers did. If she had known of the hole, or if it had been light enough for her to see it by the exercise of ordinary care, a different question would have been presented.

Under the circumstances, which she had the right to assume existed, she was under no obligation, as matter of law, to look be* fore she put her foot down, but it was a question of fact for the jury to decide not only whether she should have been more vigilant, but also whether, if she had looked, she could have seen the hole in the surrounding darkness. Johnson v. H. R. R. R Co., 20 N. Y., 65 ; Ernst v. H. R. R. R. Co., 35 id., 9; Morrison v. N. Y. C. & H. R. R. R. Co., 63 id., 643 ; Taber v. D., L. & W. R. R. Co., 71 id., 489 ; Hart v. Hudson R. Bridge Co., 80 id., 622.

The circumstances did not require that freedom from contributory negligence should be shown by direct testimony, but they permitted the inference to be drawn from the general tendency of all the evidence in favor of the plaintiff. Id.

As no other question has been presented for consideration we think that the judgment should be affirmed.

All concur.  