
    LESLEY E. WESTON, Plaintiff and Respondent, v. THE NEW YORK ELEVATED RAILROAD COMPANY, Defendant and Appellant.
    RAILROAD CORPORATIONS AS CARRIERS OF PASSENGERS FOR HIRE.
    Their responsibility and care in keeping their floors AND PLATFORMS IN A SAFE AND PROPER CONDITION, FOR THE ENTRANCE AND EGRESS OF PASSENGERS, INTO AND FROM THEIR CARS.
    
      They are responsible foi' something more than ordincvry care.
    
      
      They are hound to use all such reasonable precautions against injury, as human sagacity and foresight can suggest.
    
    Passengers have a right to assume that if they proceed with ordinary care over platforms and through passages leading to and from their seats in the train, that they may do so without risk of injury to life or limb from an unsubstantial, insecure or treacherous foothold (Hurlburt ®. New York Central & Hudson River R. R. Co., 40 M. T. 145; McDonald ®. Chicago & North Western R. R. Co., 56 Iowa, 124).
    As in the case at bar, they are bound to be on the alert during cold weather to see whether there is ice upon the platform, and to remove it or make it safe by sanding it, or putting ashes upon it, or in some other manner. The degree of care requisite for safety varies with the exigencies of the case, and it is no error to assert that a more watchful scrutiny and care should be exacted and bestowed in winter than in summer in the protection of steps, landings and platforms from dangerous accumulations of ice and snow.
    NEW TRIAL.
    Motion fob, on the Ground of Newly Discovered Evidence.
    Facts within the knowledge of the conductor of the train upon which an accident occurs, may properly be deemed within the knowledge of the company.
    The fact that the defendant’s superintendent failed to inform himself of such facts by inquiry of the conductor, affords no ground for ordering a new trial, especially where, as in this case, the conductor was known to the defendant’s counsel to be a material witness for the defense. Ordinary diligence on the part of the defendants would have informed them of all the facts within the knowledge of the conductor, and the omission to interrogate him fully was wholly inexcusable.
    In applications of this character (which are not regarded with favor), the applicant must show that he has done all in his ppwer in acts tending to discover the testimony, and that the failure was not owing to any delinquency on his part. “If the least fault be imputable to him, he will ask for relief in vain ” (3 Graham & Waterman, 1026).
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    
      Decided March 5, 1877.
    
      Appeal by defendant from a judgment for $9,142.30, entered upon a verdict in favor of plaintiff; also, from an order denying defendant’s motion for a new trial made on the minutes of the court; also, from an order made at special term, after judgment, denying defendant’s motion for a new trial on the ground of newly discovered evidence.
    The action was brought to recover damages for personal injuries sustained by the plaintiff, through the alleged negligence of the defendants, who are common carriers- of passengers for hire.
    On the afternoon of February 3, 1873, the plaintiff, with other passengers, crossed the platform extending from defendant’s waiting room to the track of their railroad, in order to enter a train then about to depart from one of their stations. It had been snowing-during the day and the night previous. The platform was in an icy, snowy, slippery condition. The plaintiff slipped upon the ice, fell, and sustained serious injuries, from which it is improbable that he can ever entirely recover.
    At the close of the plaintiff’s case, the defendants moved to dismiss the complaint, on the ground that the evidence failed to show negligence on their part, and tended to establish want of due care on the part of the plaintiff. The motion was denied. It was renewed at the close of defendant’s evidence, and again denied.
    The court charged the jury, among .other things, that “the defendants were bound to be on the alert during cold weather,,and to see whether there was ice upon the platform, and to remove it, or make it safe by sanding it, or putting ashes upon it, or in some other manner ; and that the omission to do so, or something equivalent, was negligence.” Also, “that the defendants were bound under the circumstances of this case, to keep the platform free from snow and ice, or from being slippery, . . . so as to allow passengers to go upon it in safety.” "Exception was taken by the defendants to these portions of the charge.
    The jury rendered a verdict for $9,000 in favor of the plaintiff.
    The court declined to set aside the verdict as against the weight of evidence or as excessive, and the defendant’s motion upon the minutes, for a new trial on these grounds, was denied.
    After judgment, the defendants applied at special term for a new trial, upon affidavits tending to show that the conductor, who had charge of the train, and who witnessed the accident, but who was not called as a witness at the trial, could testify to material facts not within the knowledge of defendant’s superintendent at the time of the trial. The newly discovered evidence was to the effect that the plaintiff fell on the steps leading from the waiting-room to the platform; that there was no snow or ice upon those steps, and that he afterwards admitted that the company was not to blame. Several affidavits were read in opposition, contradicting the conductor, and showing that the trial had been once postponed in order to enable the defendants to secure his attendance or procure his deposition, and that they finally proceeded to trial voluntarily in his absence, without applying for a further postponement, and without attempting to take his deposition under commission or otherwise.
    Tracy, Olmstead & Tracy, attorneys for appellant; Charles Tracy, of counsel.
    
      Royal S. Crane, attorney, for respondent; I. T. Williams, of counsel.
   By the Court.—Sanford, J.

This case appears to have been submitted to the jury upon the issues of fact presented by the pleadings under proper instructions from the court, and I see no reason to interfere with the verdict, either as against the weight of evidence, or on the ground of excessive damages. The jury were in effect instructed that the burthen of proof was upon the plaintiff, and that in order to recover he was bound to satisfy them by a preponderance of credible testimony that the defendants were guilty of negligence, whereby his injuries were occasioned, and that no negligence on his part contributed thereto that on the other hand, an absolute duty devolved upon him to exercise all his faculties against suffering • injury from facts of which he had notice; and that, under the circumstances, it was a question of fact for them to say, whether he “was using ordinary prudence in proceeding as he did on the platform as he described it, slippery to the extent that it was, in the midst of such disturbance as he described.”

The court further charged, in compliance with the request of defendants’ counsel, that the defendants were not bound to keep their platform in such a condition that it would be impossible for a passenger to slip thereon ; but in such condition, that persons using the ordinary care that people do use when they are not apprised of danger, would not have slipped. That the plaintiff was negligent, if, having seen that there was snow and ice on the platform on which others slipped, he did not exercise greater 'care and caution than he would have used if he did not know that there was snow or ice, and that the notice he had of danger called upon him to use special precautions against slipping.

These instructions are as favorable to the defendants as they well could be, consistently with the established rules of law applicable to cases of negligence. Railroad corporations, as carriers of passengers for hire, are responsible for something more than mere ordinary care in keeping their floors and platforms in a safe and proper condition for the entrance and egress of passengers into and ont of their cars. They aré bound to use all such reasonable precautions against injury as human sagacity and foresight can suggest; and their passengers have a right to expect and to assume that in proceeding with ordinary care over platforms, and through passages leading to and from their seats in the train, they may do so without risk of injury to life or limb from an unsubstantial, insecure or treacherous foothold (Hurlburt v. N. Y. Central R. R. Co., 40 N. Y. 145; McDonald v. Chicago & N. W. R. R. Co., 56 Iowa, 124).

It is not stating the responsibility of carriers of passengers for hire too strongly in this regard to declare that they are bound “to be on the alert during cold weather, to see whether there is ice upon the platform, and to remove it, or make it safe by sanding it, or putting ashes upon'it, or in some other manner.” The degree of care requisite for securing safety varies with the exigencies of the case, and it is no error to assert that a more watchful scrutiny should be exacted and bestowed in winter than in summer in protecting steps, landings and platforms from dangerous accumulations of snow and ice. Indeed, the evidence in this case shows that the defendants recognized this very obligation, for one of their witnesses testified that he always did his best to try and keep the platform free from snow. That he generally took ashes or sand, and shook it on the platform, and on the steps leading in and out of the door. That he took a broom, and swept the snow off; and a mop, and mopped it after-wards, “Avhich,” he adds “was my duty to do.” In exacting from their employees a more stringent observance of the precautions requisite for securing the safety and comfort of their passengers than their counsel deems strictly obligatory, we think the defendants but conformed to the requirements of law, and in no Avise exceeded their responsibility to the public. It was for the jury to determine, on all the evidence, whether such precautions were in fact observed or omitted.

The exceptions taken at the trial to certain rulings of the court in rejecting evidence have been considered, and are not deemed tenable.

The motion for a new trial on the ground of newly discovered evidence was properly denied. The existence of this evidence alleged to have been newly discovered, could readily have been ascertained by the defendants prior to the trial, had proper diligence to that end been employed. Indeed, facts within the knowledge of the conductor "in charge of the train upon which an accident occurs, may properly be deemed to be within the knowledge of the company running the train. That the defendants’ superintendent failed to inform himself of such facts by inquiry of the conductor, affords no ground for ordering a new trial; especially where, as in the present case, no effort seems to have been made to secure the attendance or obtain the deposition of the conductor, who might well have been presumed, and was, in fact, known to defendants’ counsel to be a material witness for the defense.

Ordinary diligence on the part of the defendants would have elicited from their conductor all the facts within his knowledge pertinent to the controversy, and the omission to interrogate him fully, and to procure Ms testimony, is wholly inexcusable. Applications of this character are addressed to the discretion of the court, and are regarded with disfavor. The applicant must show that he has done all in his power, and that failure to discover the testimony was owing to no delinquency on his part. “If the least fault be imputable to him he will ask for relief in vain” (3 Graham & Waterman, 1026).

I am of opinion that the newly discovered evidence in question would not, if adduced at the trial, have materially affected the result. It is not of sufficient weight to authorize a new trial.

The judgment and orders appealed from should be affirmed with costs.

Curtis, Ch. J., and Freedman, J., concurred  