
    ELLEN McMAHON, as Administratrix, &c., Appellant, v. THE NEW YORK ELEVATED R. R. Co., Respondent.
    
      Decided February 4, 1884.
    
      Action by administrator for causing death by negligence—elevated railroad stairway—absence of evidence bearing either way, as to contributory negligence—questions of fact and of law.
    
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal from judgment in favor of the defendants and against the plaintiff on dismissal of the complaint, and from an order denying a motion for a new trial.
    
      The court at general term said: “Plaintiff claims damages from defendants on account of the death of her husband, the intestate, which occurred on June 5, 1879, while he was ascending the stairway of the station of defendant’s railroad at One Hundred and Twenty-ninth'streef, and, as she alleges, by reason of the improper construction of the stairway, and the hand-rails being too low and of improper width, and the stairs uncovered, exposed to rain, and slippery.
    “ The learned trial judge held that there was no evidence that the plaintiff’s intestate was not negligent, or that his negligence or misfortune did not contribute to the bringing about of the accident, and dismissed the complaint on that ground.
    “ In order to obtain a verdict in this case, plaintiff was bound to prove that the negligence of the defendants caused the death of the deceased, and also that no negligence on his "part contributed to that event.
    “It is the duty of a railroad company carrying passengers for hire, to provide safe and proper means’ of ingress and egress to and from their trains {Shearman and Redf eld on Negligence, § 275 ; 27 Alb. L. J. 83). Is there evidence that the defendants in this instance failed to perform that duty ? The testimony on that subject is substantially as follows : The accident occurred at about two o’clock in the day. It had rained in the forenoon, but was not then raining. The stairs leading to defendant’s ticket office were made of wood, of very fair width, the steps covered with india rubber strips. There was no roof overhead. The memory of the witnesses as to whether that was the condition of the stairway on the day of the accident to the deceased is not .certain. The side rails were from two feet eight inches to three feet five inches high, came up to about a man’s hip. They were on the top about four inches and a-half wide— too wide for witness to put his hand, round them. In rainy or slushy weather the place was, in the opinion of one of the witnesses, dangerous for people to travel on. A man had fallen on the stairs before the injury to the deceased, but how, or why, or exactly where, or under what circumstances he fell, did not appear.
    “The case of Dougan v. Champlain Trans. Co. (56 N. Y. 1), is, in its leading features, similar to the cáse at bar. In that case, the deceased fell down and slipped under the railing of the gangway of a steamboat, went overboard and was drowned. Held that there was no ground for supposing that any passenger would fall under the railing, and it was obvious that no such thing was likely to occur, the plaintiff should be non-suited ; and the non-suit was sustained by the court of appeals. In the case at bar there was no evidence, that from any imperfection in their construction, any danger of any passenger falling over the stairs to the ground, could fairly have been apprehended, or that such defect would necessarily or naturally lead to such a result, although the stairs may, in some respects, have been imperfect and inconvenient for travel.
    “ The question whether evidence offered to prove negligence should be passed upon as a question of law by the court, or left to the jury as matter of fact, is always doubtful and difficult, and depends on the circumstances of each case. In the case at bar it does not seem to have been passed upon by the trial judge, the motion to dismiss plaintiff’s complaint being granted expressly on the ground that there was no evidence that the negligence of the deceased did not contribute-to the injury. The plaintiff was bound to prove that no contributory negligence on his part existed (Hale v. Smith, 78 N. Y. 480). 'Where there is an entire absence of evidence that plaintiff is free from fault, he cannot recover (Wendell v. R. R, 91 Id. 420). ‘It is not enough to prove facts, from which either the conclusion of negligence or of the absence of negligence may be with equal fairness drawn, but the burden is upon the plaintiff to satisfy the jury that there was no contributory negligence on the part of the deceased (Hart v. Hudson Bridge Co., 84 Id. 56). It is not sufficient that the evidence in this respect was equally balanced, it was essential that at least aprima facie case should be established (Id.). 
      Where there is no evidence as to what actually did take place at the time, and the proof is such as to render it uncertain, it cannot be said that absence of negligence is established. No inference can be legitimately drawn in favor of the plaintiff ’ (Id.).
    
    “This is the difficulty in the case at bar. There is absolutely no evidence to show how or why the accident to the deceased occurred. No one was near him at the time. Witnesses, standing on the ground below, saw him go up the stairs until he got to the second flight, and reached a' spot within three or four steps of the upper platform leading to the ticket office, where he fell. 1 He stopped, and leaned against the rail. He went over sideways. He fell across the rail. He did not have hold of the hand rail. He walked up the stairs the same as anybody else.’ This is all. Whether he imprudently and incautiously léaned over and lost his balance, whether he slipped on the stairs, and fell over, or whether he was the victim of sudden dizziness, and the disaster was inevitable, does not appear. There is no evidence of any -negligence on his part contributing to his fall. Neither is there any evidence that he was not negligent. There is no fact bearing on the subject to go .to the jury—no conflict of evidence to be considered—no inference from any fact to be weighed by them ; and in such cases, the question must, of necessity, be determined by the court (Wendell v. R. R., 91 N. Y. 420 ; Reynolds v. R. R., 58 Id. 248; Cordell v. R. R., 75 Id. 330).”
    
      O'Byrne & Stewart, for appellant.
    
      Deyo, Duer & Bauerdorf, for respondent.
   Opinion by O’Gorman, J. ; Sedgwick, Ch. J., concurred.

Judgment appealed from affirmed, with costs, and order denying a new trial affirmed, with ten dollars costs. ■  