
    RUSK v. MANHATTAN RY. CO.
    (Supreme Court, Appellate Division, First Department.
    December 8, 1899.)
    1. Carriers—Personal Injury—Proximate Cause—Evidence.
    Evidence that plaintiff slipped on a platform at the bottom of a flight of stairs, where there was a slight snow over thin ice above a depression of from one-eighth to three-eighths of an inch, does not warrant a finding that the depression was the proximate or a concurrent cause of the accident.
    2. Same—Negligence—Ice and Snow.
    It will be presumed that the presence of a light snow, and thin ice under it, on the platform at the bottom of stairs at an elevated railway station, was due to the snowstorm prevailing when plaintiff slipped on it, so that the railway company was not negligent in not having it cleared off.
    3. Same.
    Failure to put sand, ashes, or sawdust on a light show and thin ice on a platform, at the bottom of stairs at an elevated railway station, is not negligence, there being no such obvious danger to passengers that the company was bound to anticipate that injury might be sustained by reason of it.
    Appeal from trial term, New York county.
    Action by Mary L. Rusk against the Manhattan Railway Company. From a judgment on a verdict for plaintiff, and from an order denying motion for new trial, defendant appeals. Reversed.
    Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLAUGHIN, and INGRAHAM, JJ.
    J. Osgood Nichols, for appellant.
    Gilbert D. Lamb, for respondent.
   McLAUGHLIN, J.

This action was brought to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant. The plaintiff had a verdict of $2,500, and from the judgment entered thereon the defendant has appealed. At the trial, at the close of plaintiff’s case, the defendant moved for a dismissal of the complaint, which motion was denied, and the defendant excepted. After the denial of this motion, the defendant rested, without offering any evidence.

The question, presented, therefore, is whether, giving to the plaintiff the benefit of every inference that can fairly and legitimately be drawn from the testimony offered by her, it can be said that the defendant is legally liable for the injuries which she sustained. This testimony was to the effect that on the 26th of February, 1896, the plaintiff, for the purpose of going to Rector streqt, entered one of the defendant’s cars at Ninety-Third street; that, when the car arrived at Rector street, she passed from it to the station platform, and then attempted to pass from there down the flight of stairs to the street, and, as she stepped from the last step of the stairs onto a platform at the foot of them, she slipped,, fell, and broke both bones of the right ankle; that that portion of the platform upon which she stepped had been worn away to such an extent that there was a depression in it of from one-eighth to three-eighths of an inch; that the platform, including the depression, was covered with a thin coating of ice and snow, but how long the same had been there did not appear, but it did appear that it was snowing when the plaintiff left her residence to go to Rector street, and that it was also snowing when she left the car at that place. The plaintiff herself, in describing the manner in which she was injured, said:

“When we got to the Rector street station, we got off the train, and went down the platform, and I noticed that it had snowed a little, and that there was some snow on the upper platform; so I thought, 'Well, I better be careful;’ so we started down the steps, and I waited a little until I got hold of the rail. I took hold with my right hand, gathered my dress in my left hand, and started down the steps, and just as I stepped off the last step, at the bottom of the first flight of stairs, my left foot slipped, and * * * it turned right under, * * * and broke one bone near the ankle joint, * * * and the outside bone a little further up from the ankle joint.”

She also testified: That, after she fell, she was helped up by her brother, and placed on one of the steps of the stairs, where she remained while he went to the street to get a carriage to take her home. That while she was sitting on the step she noticed the place where she fell, and that “it was covered with ice, and was slippery”; and “just as you step off the place there was a worn-off place,—a little kind of scooped-out place. I should judge it was about half an inch below the normal level. I don’t know how deep the ice was, except it covered the boards of the platform. Well, it seemed to cover the whole platform,—that whole little landing.” That she could not say whether the depression was one-eighth, one-fourth, or three-eighths of an inch thick, but there was ice over it, or she would not have fallen. Her brother, Frank T. Rusk, testified that he was with the plaintiff, and saw her slip and fall; that he noticed the depression, and “that the platform around there, and at that part of it, so far, at least, as I observed it at all, was icy,—covered with ice”; that he could not say how thick the ice was, “except that it was thick enough so that it was, so far as I know, the floor, the treads, the planks, did not show through at any place, and it was all ice” which, from the appearance, he should judge had recently formed; that it was snowing at the time, and he observed a little snow on the platform. The only other witnesses who testified as to the condition of the platform and stairs at the time the plaintiff was injured were Edward G. Meeker and Gilbert M. Hargrave. The former stated that, after the plaintiff fell, he went to her assistance, and then observed the condition of the platform, and that it was in “an icy condition, and the landing was worn just at the bottom of the last step, worn a little hollow,—was worn out,—and, in that hollow and adjacent to it, was icy. This ice was worn smooth. I can’t say how thick that ice was. I could not say, either, how extensive the ice was over the place!” And the latter witness testified that he observed the landing at the foot of the first flight of stairs, and that “there was some snow and ice on it”; that “at the foot of the last step there was ice there,—a thin sheet of ice, and some snow on it.”

It is apparent, from a fair consideration of all the testimony offered by the' plaintiff, that the proximate cause of her injury was the ice and snow; that this, and not the depression, was the cause of her slipping. • She was not entitled to recover, unless she established to the satisfaction of the jury, by a fair preponderance of evidence, that her injuries were due to some act of commission or omission on the part of the defendant, and for which it was legally liable. In other words, before she could recover, she was bound to establish that the defendant’s negligence was the proximate cause of her injuries, and this, we think, she failed to do.

It was, as we have seen, snowing at the time, so that the only inference which can be drawn from the testimony is that the presence of the ice and snow was due to the storm which was then progressing. The defendant, under all of the authorities, had a reasonable time after the snow fell and the ice formed to remove it. Kelly v. Railway Co., 112 N. Y. 443, 20 N E. 383. It was not liable because it did not sprinkle “sand, ashes, or sawdust” upon the ice and snow. It was not so obviously dangerous to travelers that it was bound to anticipate that injury might be sustained by reason of it. Indeed, the plaintiff herself testified that, in a space of 10 or 15 minutes, she saw several hundred people pass over the same place, and, so far as appears from her testimony, in not a single instance did she see one of them slip or fall. In Kelly v. Railway Co., supra, a passenger was killed by slipping and falling on a station stairway of this same defendant. Snow had fallen during the night, and it was there claimed that the defendant was liable because it did not cover or sprinkle, upon the snow and ice upon the stairs, sand, ashes, or something of that character. Judge Peckham, in delivering the opinion of the court, referring to this claim, said: “The failure to throw ashes or sawdust, or something of that character, upon the steps during the storm, cannot be regarded as negligence, because the continuance of the storm would render the steps as slippery as before.” We are therefore clearly óf the opinion that the defendant was not liable for an injury sustained by reason of the snow and ice, and it was not liable on account of the depression in the platform, because as to that the evidence did not establish that the injury to the plaintiff would not have been sustained except for that cause; in other words, that the depression in the platform was the proximate cause of her injury. In Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, it was said: “When damages claimed in an action are occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which he is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause, and the jury must not be left to mere conjecture, and a bare possibility that the damages were caused in consequence of the act of the defendant.” And to the same effect are Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. 642; Ring v. City of Cohoes, 77 N. Y. 83; Ayers v. Village of Hammondsport, 130 N. Y. 665, 29 N. E. 265; O’Keeffe v. Mayor, etc., 29 App. Div. 524, 51 N. Y. Supp. 710. In Ayers v. Village of Hammondsport, the plaintiff fell upon new ice, formed the night before, over an old accumulation of ice and snow, upon a sidewalk in one of defendant’s streets which had been negligently constructed. It was held, in an action to recover damages for personal injuries sustained by slipping and falling, that in the absence of evidence showing that the slope of the walk was a concurring cause of the fall, without which it would not have happened, the plaintiff was not entitled to recover. In O’Keeffe v. Mayor, etc., supra, the plaintiff fell upon snow and ice which fell and formed over old ice and snow, and it was held that there was no evidence which would warrant a verdict for the plaintiff, in the absence of proof that his fall was occasioned by the old, and not the new, ice. These, and many other authorities which might be cited, are all to the effect that the plaintiff in this action was not entitled to recover, in the absence of evidence showing that the depression in the platform was a concurring cause of her injury, without which it would not have happened.

It follows that the judgment and order appealed from must be • reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  