
    Joseph W. Palmer, Resp’t, v. The Pennsylvania R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Negligence—Railroad corporations—Dangers produced by thht ELEMENTS—WHEN LIABLE FOR.
    Railroad corporations will not be held responsible for dangers produced by the elements until they have assumed a dangerous form and the corporation has had a reasonable opportunity to remove their effects. It is. however, impossible to lay down any general rule applicable to- all circumstances in respect to the degree of care to be observed by a railroad corporation in the removal of the ice or snow from its cars.
    2. Same—Railroad not required to clean snow from: train while RUNNING BETWEEN STATIONS.
    The plaintiff had taken passage at Chicago on the defendant’s train for a place beyond Fort Wayne, and had been upon the cars for about twelve hours, when about five o’clock a. m. they arrived at the place where the accident occurred. It had stormed at various times during the night and morning, and the weather was cold and freezing. A little ice had formed upon the platform of the passenger car, and the plaintiff in alighting slipped on it, fell, and broke his leg. Held, that the company was not liable ; that they were not required to remove snow and ice which became attached to a running railroad train while travelling in the night during a continuous storm.
    
      8. Same—Duty of passenger.
    A passenger of a railroad train lias no right to assume that the effects of a continuous storm of snow, sleet, rain ’or hail, will be immediately and effectually removed from the exposed platform of the car while making its passage between stations, or the termini of its route.
    4. Same—Railroad not an insurer of safety of passenger.
    Railroad corporations are not the insurers of the lives or safety of passengers upon their cars, and in order to render them so it is essential to show that they have neglected the performance of some duty which in the exercise of reasonable care, prudence and diligence, they owe to such passengers.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the defendant, entered upon a verdict rendered by a jury at the Dutchess county circuit.
    
      Homer A. Nelson, for app’lt; Grant B. Taylor, for resp’t.
    
      
       Reversing 4 N. Y. State Rep., 888.
    
   Ruger, Ch. J.

The evidence was quite conflicting as to the presence of any ice on the platform of the car from which the plaintiff fell and broke his leg, and as to the quantity of snow lying thereon; some of the witnesses stating that there was no ice and only so much snow as had apparently been blown in and gathered around the corners and crevices of the platform; and others saying there was soihe ice formed on the edges of the platform from sleet, hail or rain freezing there and being thinly covered with a coating of snow. It had stormed at various times during the night and morning, and the weather was cold and freezing. Whatever may have been the testimony, it is quite certain that the quantity of either ice or snow was quite inconsiderable, and perceptible only after some inspection. It also appeared that such as it was, it had been formed upon the platform of a passenger car attached to a through train, running from Chicago to Fort Wayne, in the course of its transit between those places.

The plaintiff had taken his passage at Chicago for a place beyond Fort Wayne, and had been upon the cars about twelve hours when about five o’clock A. m., they arrived at Mansfield in the state of Ohio, where the accident occurred.

The jury were undoubtedly authorized to find from the evidence, that there was some snow upon the car platform and some slight spots of ice around its edges, and that the accident was occasioned by the slipping of the defendant bn the platform by reason of such ice or snow. There is no claim that there were hummocks or bunches of either substance, or that it lay in any other form than as a thin covering upon the platform.

It was also established by tlie evidence of the plaintiff that he was aware of the condition of the platform at the time of the accident as he had two or three times during the night crossed over it and observed that is was slippery.

The amount of the verdict’ rendered in the case is _ quite reasonable, and as the plaintiff was undoubtedly seriously injured and was subjected to damage by reason thereof, we should be quite willing to affirm the judgment if it could be done without violating legal principles. Railroad corporations, however, are not the insurers of the lives or safety of passengers upon their cars and in order to render them so it is essential to show that they have neglected the performance of some duty which in the exercise of reasonable care, prudence and diligence, they owe to such passengers.

We think the trial court was not justiued in applying to this case the rule pertaining to the construction and maintenance of tracks and running machinery by railroad corporations, which holds them to the use of the utmost possible care in discovering and remedying defects therein. That rule is applicable to such appliances of a railroad as would be likely to occasion great danger and loss of life to the traveling public if defects existed therein on account of the velocity with which cars are moved and the destructive and irresistible force which accompanies such motion.

No claim is made here but that the road bed was in good order; the cars constructed upon the usual and customary plan and provided with all of the conveniences and appliances ordinarily used to afford safety and comfort to their occupants. It had a safe and well-constructed platform with proper and convenient steps to enable passengers to safely enter or alight therefrom and hand rails on either side to afford assistance in case of any insecurity in the footing of the passageway. The accident occurred from a cause which is as common to all other exposed places as to that of a car platform and which is inseparable from the nature of a northern- climate. Persons who suppose that they are freed from the exercise of reasonable care and prudence in passing over places exposed to ice and snow in such a climate as ours, upon the assumption that a duty belongs to some other person to keep such place under all circumstances absolutely free therefrom, greatly mistake the legal obligations resting upon the parties respectively interested.

The rule laid down by the trial court in Weston v. The N. Y. Elevated Railroad Co., as approved in 73 N. Y., 595, in reference to a permanent platform at an elevated railroad station in the city of New York, was that “the defendant was not bound to keep its platform in such a condition that it would have been impossible for any passenger to slip, but in such a condition that a person using ordinary care, which people use when not apprised of danger, would not slip.” This was applied in a case where the snow had fallen long before the accident and an effort had been made by the railroad company to remove it, bufe had imperfectly performed that duty. We think even such a rule is not applicable to the removal of snow and ice on cars attached to a running railroad train travelling in the night during a continuous storm. The immediate and 'continuous removal of all snow and ice from such trains, or the covering of them with sand or ashes in such manner that no slippery places shall be at any time exposed, would be quite impracticable and beyond the duty which a railroad company owes to its passengers. The presence of snow or ice upon exposed places on moving cars, is an accident of the hour, and no ordinary diligence could, during the prevalence of a storm, wholly remove its effects from the places exposed to its action, so as to prevent accidents to heedless and inattentive travellers. A passenger on a railroad train has no right to assume that the effects of a continuous storm of snow, sleet, rain or hail will be immediately and effectually removed from the exposed platform of the car while making its passage between stations or the termini of its route, and it would be an obligation beyond a reasonable expectation of performance, to require a railroad corporation to do so.

We are not referred to any case laying down the precise degree of care and diligence required of such corporations under such circumstances; but we think it must be somewhat analogous to that imposed upon municipal corporations in respect to the removal of snow and ice from public streets. Those corporations are required to remove dangerous accumulations of snow or ice in a street or public place within a reasonable time after they have occurred; but they are not to be deemed negligent if they do not remove all traces of such obstructions when they do not constitute something more than the presence of danger arising alone from their inherent quality of being slippery. Taylor v. Yonkers, 105 N. Y., 202; 7 N. Y. State Rep., 332; Kinney v. City of Troy, 108 N. Y., 570; 14 N. Y. State Rep., 15; Kaveny v. City of Troy, id., 572; 14 N. Y. State Rep., 18.

The theory upon which the learned trial judge denied the motion for a nonsuit in this case, is undoubtedly expressed in his charge to the jury, in which he says, “if you will pay attention you will understand the enormous responsibility which such a company assumes. The duty it owes the public is the utmost possible care to anticipate future accident or disaster, and the utmost possible prudence in guarding against it.” Although this portion of the charge was unexcepted to by the defendant, and is therefore unavailable to it as an error of law upon this appeal, it may yet be taken as an expression of the views entertained by the court in respect to the law, in refusing to grant the motion to nonsuit presented by the defendant.

It is quite impossible to lay down any general rule applicable to all circumstances, in respect to the degree of care to be observed by a railroad corporation in the removal of ice or snow from its cars, and each case must, therefore, be generally determined by its own peculiar circumstances; but it is safe to say that such corporations should not be held responsible for the dangers produced by the elements until they have assumed a dangerous form, and they have had a reasonable opportunity to remove their effects. Having arrived at the conclusion that the case presented no facts as to the negligence of the defendant, which a jury were justified in regarding as proof of negligence, we deem it unnecessary to discuss at length the question of the alleged contributory negligence of the plaintiff.

A problem, not free from doubt, is presented by a verdict adjudging the defendant guilty of negligence in not observing the danger arising from the presence of snow and ice upon a platform, and yet exhonerating the plaintiff from the imputation of contributory negligence in view of the fact that he knew that ice and snow had accumulated on the platform; that he had twice slipped there the same night, and thereafter walked fearlessly over it without availing himself of the protection of handrails within his reach on both sides of the platform.

The same duty which rested upon the defendant to see and remove this obstruction, rested upon the plaintiff with still greater force to guard himself from injury while passing over it, because he had been informed, by experience, of its presence and danger, and as the storm continued until the train reached Mansfield, he should have known that no reasonable opportunity had been afforded the railroad company to effectually remove it.

The judgments of the courts below should, therefore, be reversed and a new trial ordered, with costs to abide the event.

All concur.  