
    Louis Gabriel, Appellant, v. The Long Island Railroad Company, Respondent.
    
      Negligence — a passenger stepping between the lower step of a car amd a station platform.
    
    A passenger, whose left leg was shorter than his right leg, while alighting from a railroad train under a covered shed at about dusk, reached in safety the lower step of the car which was about fourteen inches higher than the level of the station platform and distant horizontally therefrom six inches. The place was dark and the passenger, being unable to see the platform', felt it with his cane, and after placing his left foot upon it put down his right foot, and stepped into the aperture between the platform and the car step, and sustained severe injuries.
    
      Reid, that the evidence failed to establish either negligence on the part of the • railroad company or the absence of contributory negligence on the part of the passenger.
    Appeal by the plaintiff, Louis Gabriel, from a judgment of the Supreme Court in favor of the defendant, entered in' the office of the clerk of the county of Queens on the 27th day of April, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Queens County Trial Term.
    
      William McArthur, for the appellant.
    
      William J. Kelly, for the respondent.
   Goodrich, P. J.:

The plaintiff sues to recover damages sustained by him in alighting from a car of the defendant at its station in Long Island City, on January 30, 1898, at “ something after 5 o’clock ” in the afternoon. The sun set that night at sixteen minutes after five.

The complaint alleged that whilst he was in the act of alighting * * * the plaintiff’s right foot suddenly descended into an aperture between defendant’s platform at said station and the carriage of defendant,” and that the injuries “ were solely caused by reason of the aperture between the platform and carriage aforesaid being unnecessarily and dangerously wide, unknown at the time to the plaintiff, and against which he was not warned, and through the negligence of the defendant, and not otherwise.”

The plaintiff in his childhood had met with an accident which injured his left leg so that it was shorter than the right, and he wore a cork shoe. He always carried a cane.

In his brief the plaintiff’s counsel groups the facts shown by the evidence as follows: “ The platform at which the plaintiff’s car stopped for him to alight from was roofed in by a wooden shed coming down to the tops of the cars. In front of the engine of that train there were two dummy or stationary cars. He got out about 100 feet from the railing where tickets are punched, on the left side of the platform; his objective point (the exit gate) being on his right hand when descending. Along the other side of that platform, opposite where he alighted, there, was another train of cars. Thus there were two trains of cars parallel, also the overhanging shed ; and the place was quite dark on the surface of the platform at that particular place where the car stopped for him to alight. Other passengers having gotten off, and the signal sung out, Long Island City, last stop,’ plaintiff descended the steps of the car, ■ using his right hand on the rail and holding his walking cane in his left. When he had reached the third or lowest step he put out his cane to feel the platform because he could not see it, the place being dark. His eyesight is very good. He felt the platform with his cane, and then he put down his left foot which reached the platform in safety. Supposing that he was safe in putting down his right foot also, and intending to put it on the platform, he put. it down. The lowest car step was about 40 inches above the roadbed .of. the line and •about 14 inches higher than the level of the platform and distant horizontally from that platform about 6 inches. When plaintiff put down his right foot also, it, instead of going on the platform as the left one had done and as he had intended it to do, went down into an aperture between the lowest step and the platform so wide that his left foot was also pulled down. His whole body from the waist down was .precipitated into the aperture, which was so capacious ' that when he received the shock consequent on his right foot reaching the roadbed of the line he turned around in it, and sat for a few seconds on the edge of the platform with his back to it.” At the close of the plaintiff’s evidence the defendant moved for a dismissal of the complaint on the grounds :

“ 1. Failure to prove negligence on the part of the defendant;
“ 2. That plaintiff has failed to prove absence of contributory negligence on his own part.”

The court granted the motion and the defendant excepted and appealed from the judgment.

The case is so nearly similar to Lafflin v. Buffalo & Southwestern R. R. Co. (106 N. Y. 136) that it is hardly necessary to cite other authority. In that case the plaintiff, a passenger, in attempting to step from the car to the station platform, missed the latter, fell between it and the car and was injured. In her action to recover for the injuries the following facts appeared : The distance between the platform and the car was eleven inches. The lower-step of the car was eight inches below the top of the- platform and one foot seven inches distant therefrom. The second step was about four inches below the platform and two feet two inches therefrom. Plaintiff stepped from the second step, without having hold of the iron railing on either side and without looking to see the station platform. The platform had been used for many years by passengers, and prior to the accident no one had been injured or had suffered any inconvenience on account of the distance between the platform and the cars. It did not appear but that the platform was constructed in the ordinary way, or that the space between it and the car was more than requisite; and there was no complaint that the platform was out of order or improperly constructed. The court held that the facts did not justify a verdict for the plaintiff, and that a refusal to direct a verdict for the defendant was error.

The only material difference between this and the Baffl/m case is that in the latter there was evidence “ that the platform had been used for many years by men, women and children, and that no one but the plaintiff had ever been injured or had suffered any inconvenience on account of the distance of the platform from the cars.” But I do not see that this differentiates the cases. As it was the duty of the plaintiff to prove the negligence of the defendant, he might have given evidence of other accidents (Hanrahan v. Manhattan Railway Co., 53 Hun, 420; affd., without opinion, 130 N. Y. 658), if any had occurred by reason of the method of construction, or that such construction was ■ unusual, faulty or dangerous; and there being no such proof, it may be assumed, as the road has been in operation for many years, that thousands of passengers have alighted from the cars of the defendant at this station, the terminus of the road, without injury. The other passengers on the trip alighted without accident, and the simple fact that the plaintiff dropped his right foot into the aperture between the step of the car and the platform is not of itself sufficient to show faulty construction or other negligence on the part of the defendant.

In Race v. Union Ferry Co. (138 N. Y. 644) a passenger was injured while stepping from the ferry bridge onto the boat, the deck of which was eighteen or twenty inches lower than the bridge. The court held that a carrier of passengers, in the management of its business,' has the right to assume that ,passengers will take some care of themselves, and that if it conducts its business with such care as will make the entrances upon its boats safe for persons of ordinary prudence it meets the requirements- of the law.

Loftus v. Union Ferry Co. (84 N. Y. 455) recognized the rule requiring the strictest diligence of carriers of passengers in providing suitable and safe accommodation for the landing of passengers, but held that the rule does not impose the duty of so providing for the safety of passengers that they shall encounter no possible danger and meet with no casualty in the use of the appliances provided by it.

The plaintiff also contended that there was evidence that the place of the accident was not sufficiently lighted and that the time was after dusk. The evidence on this point is not very satisfactory, but it seems not to have been proved that the accident occurred after sunset; and in addition the .plaintiff’s testimony shows that he had placed his left foot on the platform. Having thus felt the platform, he must have known that there was necessarily some distance between the step and the platform. A careful examination of the evidence convinces me that the plaintiff wholly failed to establish his own freedom from negligence or any negligence on the part of the defendant. -

I have considered the exceptions to the exclusion of evidence, and find nothing which affects our decision.

The judgment should be affirmed.

Hirschberg, J., not sitting.

Judgment unanimously affirmed, with costs.  