
    (52 Misc. Rep. 540)
    WERTHEIMER v. INTERBOROUGH RAPID TRANSIT CO.
    (Supreme Court, Appellate Term.
    February 11, 1907.)
    Carriers—Injuries to Passengers—Warning of Danger.
    The duty of a subway company to inform persons boarding its trains of the existence of a space between the car platform and the platform of the station was fulfilled, and the company was guilty of no negligence, where the guard on the train uttered the words “Watch the step!” in such a manner that a person paying ordinary attention to what was going on about him would naturally hear the warning.
    Appeal from Municipal Court, Borough of Manhattan, Fourth District.
    Action by Mary Wertheimer against the Interborough Rapid Transit Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.
    Argued before GILDERSDEEVF, MacLEAN, and AMEND, JJ..
    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 is 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. N. Y. Brooklyn Bridge, 10 App. Div. 529, 532, 42 N. Y. Supp. 353, 355. The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.

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

MacLEAN, J., taking no part.  