
    Frank Nugent, Respondent, v. The Brooklyn Union Elevated Railroad Company, Appellant.
    
      The maintenance of a platform two and one-half feet wide on an elevated railroad without a guard rail — liability for an injury to an employee falling therefrom.
    
    A corporation engaged in operating an elevated railroad which fails to equip with a guard rail or other protection a platform two and one-half feet wide on the elevated structure, upon which the employees of the corporation are obliged to walk when engaged in switching trains and other work, is not guilty of negligence which will render it liable to an employee who had had abundant opportunities to observe the general construction of the platform and who, in broad daylight, fell therefrom while walking along it in the performance of his duties.
    Appeal by the defendant, The Brooklyn Union Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the- county of Kings on the 22d day of October, 1900, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 22d day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      John L. Wells, for the appellant.
    
      Henry A. Powell and J. G. Williamson, Jr., for the respondent.
   Hirschberg, J. :

The verdict upon which the judgment appealed from was entered was rendered upon the second trial of the case. On the first trial the plaintiff also recovered a verdict, but that verdict appears to have been set aside by the trial court upon the ground that the plaintiff, in his evidence given upon that trial, frankly admitted his knowledge of, and familiarity with, the condition of the structure where he fell, and the absence of any rail or guard. On this -trial he denied such knowledge or familiarity, but as such denial was necessarily accompanied by the assertion that he took no notice wdiatever of the structure, and as the danger was quite apparent and obvious had he seen fit to look, it is quite impossible to uphold the second verdict on any known principle of law.

At the time of the accident the plaintiff was in charge as conductor of a work train' made up of flat cars on the defendant’s elevated road in Brooklyn, at the intersection of Broadway and Myrtle avenué. The train was used for picking up old ties along the road. The plaintiff, at the time of the accident, was about to switch his train in order to permit a passenger train to pass, and had alighted from a car and was proceeding to the switch along a narrow platform provided for that purpose, when he fell from the platform into the street and was very seriously injured. The accident occurred at five minutes before three o’clock in the afternoon of December 5, ÍS98.

The road was then in the hands of a receiver, to whose liability, if any, the defendant has succeeded. The allegation of negligence in the complaint is to the effect that at the point referred to “ there was a narrow platform, at a high elevation above the level of the-street, which said platform the employees' of the said receiver, including this plaintiff, were compelled and required to use in the prosecution of their work, for the purpose of. walking over the same along the line of the railroad when engaged in the work, of switching trains and other, work. That the said receiver carelessly and negligently failed to provide a guard rail or any other protection for the safety and security of such employees as were compelled and required to use the said platform, as aforesaid, ;and that the said receiver carelessly and negligently maintained, permitted and allowed the said platform on. the said date to remain in said unsafe and perilous condition.”

This allegation of negligence is undoubtedly insufficient as the basis of an action. No statute requires the construction of guard rails or other protection on the platforms furnished for the use of railway employees; there is no allegation that the structure was riot open and visible; there is no claim of any defect in the material of which it is composed or the manner in which it was put together; theré is no statement that the plaintiff did riot know the risk attendant upon walking along a high and narrow platform, or could not have discovered the risk by intelligent inspection ; and such risk on the face of the complaint was assumed by the plaintiff as incident to his employment.

■The complaint, however, alleges the happening of the accident as follows: “ That on or about the said 5th day of December,. 1898, plaintiff was set to work by the said receiver and put in charge "of a work train upon the said road as the conductor of the said train ; that his work upon the said train consisted in directing the movements and management of the said train as it moved along the said elevated road ; that the plaintiff, in the prosecution of his said work on the said date, was compelled and required to go upon the said platform for the purpose of switching or side-tracking the said train at the said point; that while walking along the said narrow and unguarded platform, in a careful and cautious manner, he stepped upon certain ice or snow, or upon some slippery substance which had been by the said receiver carelessly and.negligently allowed tc> gather and remain upon said platform, and that said platform being unguarded and unprotected by any guard rail, or in any other manner, he was precipitated over the edge of the same,” etc.

Assuming that the allegation to the effect that the receiver had permitted the platform to become and remain slippery is a sufficient charge of negligence, it does not aid the plaintiff, for the case is wholly barren of proof to support it. All the evidence with the exception of that of the plaintiff himself, is to the effect that the platform was not slip perry, but that it was dry and free from snow and ice. The plaintiff testified that as he was walking along he slipped and fell. He did not know what caused him to slip. He said: “ I walked along the platform and I stepped on something and slipped.” Manifestly this is .wholly unsufficient as proof of negligence in the maintenance of a slippery structure. Not only is there no evidence of the nature of the something ” or as to who placed it there, but no suggestion that it was on the platform such a length of time before the accident as to charge the receiver with constructive notice of its existence.

The case was submitted to the jury upon the theory that they might lawfully find the defendant negligent in furnishing a platform high in the air, only two and a half feet wide, and without a railing. They were further permitted to find that the plaintiff did not and could not know the condition of the platform in .the exercise of such care as was incumbent upon him. The court refused to charge the jury at defendant’s request that if plaintiff’s slipping was the proximate cause of the accident there could be'no recovery; and also refused to charge at defendant’s request that if the slipping was a mere accident for which no one was responsible the verdict should be for the defendant.. The verdict is, therefore, based on two propositions: First, that the jury could find that in furnishing the structure in question the defendant did not furnish the plaintiff with a reasonably safe place on which to work, and, second, ■that they could also find from the proof that the plaintiff’s opportunities to discover the danger were not sufficient to charge him with notice of the character of the structure; or, in other words, that the risk was one which he did not assume. Neither proposition is sound.

The plaintiff had been in the employ of the defendant at the time of the accident ten years. The platform was similar in. every respect to those constructed on other portions of the road, excepting at stations or yards where ' the whole surface of the structure was boarded over, and there was no proof that such platform had ever during the ten years proven insufficient or dangerous. The plaintiff’s original employment was as lamp man; that is, he was engaged, to clean the lamps in the cars, and his duties were performed at the yard at Manhattan Junction. In July, 1898> he was made brakeman on the jDassenger trains, and for a few weeks immediately proceeding the accident acted as conductor from time to time on the work trains. It cannot be doubted that he had abundant opportunities during his ten years of' service to observe the general construction of the platforms along the road. Indeed, he admitted on. the first trial, as has been said, that he had seen the platforms before the accident, and knew that they weré of the same character as the one from which he fell. He testified on that trial as follows : “ Q. You used to be brakeinan on trains occasionally that run over this road, did you not? A. On the Broadway line? Q. Yes? A.. Yes, sir. Q. Didn’t you ever notice any board walk at all along on ■ that road ? A. There are some. Q. Did you ever see them ? A. ■ Yes, at some points. Q. They were like this board walk near Myrtle Avenue, were they not? A. Some of them, yes, sir. Q. All .of them, are they not? A. No, sir. Q. Where are they, those like:.' this ■ one ? A., Manhattan Junction. Q. In the yard, you mean ? A. Yes, sir. Q. No, I mean on the structure, away from the yard ? A. All the same, I guess. Q. All the same along the line as the one from which you fell. Is that right ? A. Yes, sir. Q. On the Fifth Avenue line did you observe the plank walks ? A. I didn’t take notice. Q. You know they are there ? A. They are there in some places, I believe. Q. And like the plank Walk at the place where you fell? A. Yes. Q. The inside is just the same as the outside walk in size and everything, is it not? A. I could not say. Q. It is pretty near the same? A. Yes, sir. Q. You were going to walk right straight ahead of you? A. Yes. Q. Along the board walk ? A. Yes, sir. Q. Were you looking at it? A, Looking at what? Q. Were you looking where you were going ? A. Yes, sir. Q. You knew that if you did not look you might step off into the street ? A. Yes, sir. Q. You say that there were no guard rails there ? A. I knew that there was nothing there when I was walking along. Q. And you slipped and fell ? A. Yes, sir. Q. You have said you had ridden on flat cars before this day. How often had you ridden on flat cars before this? A. I could not say how many times. Q. How long before this accident was the last time you had ridden on a flat car ? A. The week before, I guess. Q. What were you doing on a flat car the week before this accident ? A. Doing the same thing; picking up old ties. Q. Do you remember at what point you used to turn the switches? A. No, sir. Q. When you turned the switches you had to get off your car and walk along the board walk to the switch ? A. Yes, sir. Q. The kind of board walks you have described ? A. Yes. Q. Substantially like the one off of which you fell ? A. Yes, sir. Q. Without a guard rail ? A. Yes, sir.”

In addition to this testimony given by the plaintiff upon the first trial, and which was introduced in evidence upon this trial, there was evidence documentary in the nature of reports, and also by eyewitnesses showing that the plaintiff had not only performed duties similar to those in which he was engaged at the time, of the accident, but that he had opened the switch at the junction of Broadway and Myrtle avenue previously to the time when he fell, and on December 5, 1898, traversing the board walk in question. Conced-ing that the conflict in the evidence still rendered the question of his knowledge of the situation a proper consideration for the determination of his duty, his final story exhibited a lack of due care on his part which would preclude recovery. He testified on this trial as follows: “ Q. At the time, Mr. Nugent, when you went to this switch at the time that the accident happened, did you or did you ¡not know that there was no rail at that switch ? A. No, sir; I did ¡not. Q. You mean by that that you didn’t know that there was no Tail there .? A. Yes sir. * * * Q. And as you got down on ■the platform you could see the platform, couldn’t you? A. Well, I didn’t look to see. Q. You didn’t look at the platform at all? A. I see there was a platform there, yes, sir. Q. And you could see how wide it was, couldn’t you ? A. No, sir, I didn’t take notice how wide it was. * * * Q. You saw that there were no guardrails there, didn’t you? A. No, sir; I did not take notice.” If this testimony be true, that the plaintiff took no notice whatever of his surroundings; that in broad.daylight he walked along the platform without looking to see how wide it was and without taking any notice of whether there was a guard rail to protect him in case of slipping or of missing his footing in any way, he was clearly guilty of contributory negligence. ' On the other hand, if he knew the condition of' the platform or could have known it by the exercise of ordinary ■care and intelligence at the time he must be deemed to have assumed whatever risks were incident to the use of the structure. The rule is accurately expressed in the' head note in , Willimns v. D., L. & W. R. R. Co. (116 N. Y. 628) that “ a servant who enters upon an ■employment, from its nature hazardous, assumes the usual risks and perils of the service, and of the- open, visible structures known to him, or which he must have known, had he exercised ordinary care and observation.” His duty was, as stated by Judge Bradley in Fredenburg v. N. C. R. Co. (114 N. Y. 582, 585), “to use due ■diligence to familiarize himself by observation with the structures ■and their situation and condition in the yard with a view to his own ¡safety in the performance of his duty and for the protection of himself against injury.” (See, also, Rohan v. Metropolitan Street R. Co., 59 App. Div. 250, and cases cited.)

The proof failed to establish actionable negligence on the part of the defendant. It could lawfully maintain the platform in question, notwithstanding the risks incident to its use, there being nothing latent, hidden or concealed, and nothing which was not equally apparent to the servant as to the master. (Kaare v. T. S. & I. Co., 139 N. Y. 369; Kennedy v. M. R. Co., 145 id. 288; Robbins v. Brownville Paper Co., 53 App. Div. 641, 645.)

The judgment and order should be reversed.

Goodrich, P. J., Woodward, Jenks and Sewell, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  