
    Barnet Waldman, Appellant, v. Brooklyn Union Elevated Railroad Company, Respondent.
    Second Department,
    January 21, 1910.
    Railroad—negligence — injury to passenger by fall of window—res ipsa loquitur.
    One who has paid hig fare arid taken a .seat on a platforrri where by usage and invitation of the railroad it is customary to wait for trains occupies the status of a passenger.
    Where a passenger so seated on a platform is injured by the fall of a window in the wall above the seat, the . doctrine of res ipsa loquitur applies, and the defendant is bound to show that the accident was not due to its negligence.
    The mere fact that the city of Hew York has control of such window and that defendant did nothing except sweep the platform does not relieve it from liability.
    Appeal by the plaintiff, Barnet Waldman, from a judgment of the Municipal Court of the city of Sew York in favor of the defendant, rendered on the 21st day of October, 1908.
    
      Nathan Waxman, for the appellant;
    
      Francis R. Stoddard, Jr., for the respondent.
   Woodward, J.:

The plaintiff on the 17th day of April, 1908, paid his fare and entered upon the platform of the Brooklyn Bridge at the New York end and' took a seat on the south side of the platform where you wait for the Bath Beach'and Borough Park trains,” to quote his testimony. He was on his way to his home at 1251 Fiftieth street, 'Brooklyn, -and the defendant was operating its trains over the bridge. This platform was in charge of the defendant. While seated, as above described, on a bench near the wall, a window maintained in the wall above the seat fell and injured the plaintiff.

The defendant introduced but one witness, an engineer employed by the city of ¡New York in taking care of the bridge, and this witness testified that the city of New York had control of this window; that the defendant did nothing in respect to this terminal except to sweep the platform, and with this evidence in the case the learned judge presiding directed the jury to bring in a verdict for the defendant. From the judgment entered upon this verdict' the plaintiff appeals.

The defendant invited the plaintiff, in common with the public, to this platform; the relation of the plaintiff to the defendant at the time of the accident was that of a passenger, and the accident being one which does not ordinarily occur without negligence, and the defendant owing that high degree of care which belongs to a passenger, it was bound to provide a safe place for the plaintiff, and the mere happening of the accident under the circumstances described imposed the duty of explanation upon the defendant; it was bound to show that the accident was not due to its negligence. (Duhme v. Hamburg-American Packet Co., 184 N. Y. 404, 409, and authorities there cited.) The mere -fact. that the city of New York was in the general possession of .the Brooklyn bridge, and attended to necessary repairs, did not meet the requirement. The defendant had the right to operate its trains over the bridge; it had rights upon this platform; it invited the plaintiff to make use of this platform, and he having accepted that invitation, and occupying the relation .of a passenger, it was the duty of the defendant to exercise that degree of care which this relation demanded to see that the place afforded him in which to wait for his train was free from dangerous conditions. (Schnizer v. Phillips, 108 App. Div. 17.)

The judgment of the Municipal Court should be reversed, and a new trial ordered, costs to abide the event.

Thomas and Rich, JJ., concurred; Jenics and Burr, JJ., concurred in result.

. Judgment of the Municipal Court reversed and new trial ordered, ■ costs to abide the event.  