
    William M. Barnes, Plaintiff, v. The New York Central and Hudson River Railroad Co., Defendant.
    (Supreme Court, Onondaga Trial Term,
    February, 1904.)
    Negligence — Passenger injured by slipping on oil on an asphalt platform of a railroad station — Res ipsa loquitur.
    Proof, made in an action brought against a railroad company by a passenger for damages for personal injuries he sustained from slipping, at night, upon oil on an asphalt platform of its train shed, fenced in and lighted by electricity, while he was alighting from his incoming train, tending to show that, while strangers might and occasionally did gain access to the shed, it was intended only for passengers and employees and was under constant control by the company with opportunity to it to observe the condition of the platform at all times, that the station was an inspection station where the journals of ears were oiled, that oil had been spilled on the platform before and that no one but an oiler could obtain access to the oil supply-room in the shed, must, in the absence of any explanation of the accident or of the oil being there being given by the company, be deemed sufficient to afford prima facie evidence from which a jury may infer that the company had not exercised that ordinary care which the law requires and to justify the jury in giving the passenger a verdict under the doctrine of res ipsa■ loquitur.
    
    Motion for nonsuit, made at close of the evidence, hut decision reserved, pursuant to section 1187 of the Code of Civil Procedure. The plaintiff had a verdict.
    
      L. B. Williams, for motion.
    John H. McCrahon, opposed.
   Rogkebs, J.

This action was brought to recover damages alleged to have been sustained by the plaintiff, on the evening of Rovember 27, 1902, by slipping upon grease or oil on the platform of defendant’s passenger station, while alighting from one of its cars, at the city of Syracuse.

At this city: the defendant maintains a train shed about 700 feet long and 80 feet wide, covering several tracks that at this point run east and west. Between the tracks is an asphalt platform, the top of which is eight to ten inches above the top, and from sixteen to twenty inches outside, of the rail, making a convenient, and ordinarily a safe, method of alighting from the steps of a passenger coach.

The passenger station is on the south side of the shed and persons taking the trains usually pass from it through a door, where a man is stationed who permits passengers to enter the shed on presentation of a ticket. On the easterly end is an iron fence with gates, and from the iron fence on the north there extends westerly a tight board fence for a considerable distance. The west end is also fenced and has gates. These gates are opened for the passage of trains, and are continuously open at night. A crossing tender is stationed at each end. Entrance to this shed may be made through the restaurant, which is in the basement of the passenger station, and is effected also at the open gates; so that while it is intended that only passengers, employees of the defendant, and of express and baggage companies doing business Avith the defendant, should be admitted to the shed, other persons, not infrequently, do gain admission. At night the shed is lighted by arc lights suspended from above, and forty-five to fifty-five feet apart. Fifty-four trains pass in and out each twenty-four hours.

At the time in question, it was the course of business to inspect cars at this station. The inspector was folloAved by an oiler, Avith a two-gallon can having a bail like an ordinary pail, and a spout, and if a journal was found to require it the lubricant was poured into the box. It was known as Galena Car oil and was Hack. The oil was kept in stock in the supply-room in the train shed, in charge of a man detailed to perform that duty, and to which none but oilers had access, except when required for use elsewhere, and then the person obtaining it was obliged to present a permit therefor to the man in charge.

The station-master, on previous occasions, had noticed that oil was spilled on the platform by the oilers, but has no knowledge of its being spilled at this time. The defendant had a man, whose duty it was, among other things, to sweep the platform twice each day — forenoon and afternoon. He does not recall the day of the accident and is not able to state what time that day he did the last sweeping, nor what, if anything, he found.

About nine o’clock on the evening of the day in question the plaintiff purchased a ticket at defendant’s station, at Constantia, and took passage for Syracuse, arriving there about nine fifty. His train entered the shed on track 5, alongside, and south of, the most northerly section of the platform. As he stepped down from the car he says he put his foot upon a portion of the platform covered with grease, causing him to slip and fall; that he then looked and saw the grease was thick and black, and he seeks to have it inferred that it was the same kind that was customarily used in oiling car wheels. There is no evidence as to the length of time it had been there, and no direct evidence how or by whom it was so placed. It is quite certain that it was not occasioned by dripping from a journal, as that would have fallen between the rail and the platform; but, it is argued by plaintiff’s counsel, that because of the supposed identification of the grease, the manner it was poured into the journal by the oiler, the possibility of spilling and the exclusion—though only partial — of all persons other than passengers, employees and others having business with the defendant, the jury would be authorized to find it was placed there by one of the defendant’s servants, and that the defendant, if that fact were found, would be liable as and for the negligent act of its employee. To this contention, I am hardly prepared to assent.

The burden of proof of the defendant’s negligence is upon the plaintiff. Oil or grease spread upon a cement floor and seen in the night time, to the interested observer, might look very like oil or grease that he later saw in a tank or can, and still not have been from the same source of supply, nor the same kind. Doubtless, other means of depositing oil, just as probable, existed, in which case the burden resting upon the plaintiff would not be borne. Searles v. Manhattan R. Co., 101 N. Y. 661; Shultz v. Hoagland, 85 id. 464; Adams v. Metropolitan St. R. Co., 82 App. Div. 354.

Revertheless, according to the plaintiff’s testimony, the grease was there, and he fell and sustained injuries in consequence.

Do these facts make out a prima facie case of negligence, for which the defendant may be held liable? The defendant had the exclusive control of the train shed. Its opportunities to observe the condition of the platform — to maintain a careful and efficient patrol — at all times and discover and remove the grease were, practically, without limitation. The plaintiff, on the other hand, could control only his own movements upon the place the defendant had provided for him to travel. He did not make the place, nor had he anything to do with its maintenance. He had paid, and the defendant contracted, for his passage from Oonstantia to Syracuse; and as a part of the same contract, he was entitled to a reasonably safe means of exit from the train to the street. He had a right to rely upon the platform being free from substances that would cause him to slip, without taking special pains to ascertain whether it was or not before he stepped. Liscomb v. N. J. R. R. & T. Co., 6 Lans. 75, 78; Ferris v. Union Ferry Co., 36 N. Y. 312.

The defendant was not bound to construct its platform so as to make accidents to passengers using it impossible, or to use the highest degree of diligence to make it safe and useful. It was bound simply to exercise ordinary care, in view of the dangers attending its use, to make it reasonably adequate for the purpose to which it was devoted. Lafflin v. B. & S. W. R. R. Co., 106 N. Y. 136; Kelly v. Manhattan R. Co., 112 id. 450.

It has been said that the measure of care due from a carrier to its passenger, whom it invites to use a walk, going from its depot to the public street, is the same that is required of a municipal corporation with respect to its public sidewalks, which it is required by law to maintain. Bateman v. N. Y. C. & H. R. R. R. Co., 47 Hun, 429. And the defendant’s counsel urges that with only this measure of care imposed upon the defendant, no liability could accrue without proof that it placed the grease upon the platform; or, if deposited by another, that it permitted it to remain for such length of time that knowledge of its presence might be imputed.

It seems to me that the rule laid down in the case cited does not require that degree of care that should have been observed by the defendant in the case at bar. It excludes that watchfulness —■ alert ” is the word used — which the carrier is bound to observe. Weston v. New York El. R. R. Co., 73 N. Y. 595.

The defendant’s shed was a limited territory. It had the power —• even though it did not exercise it fully — to refuse admittance to all persons other than its passengers and employees. The place was under its immediate supervision and could be observed and controlled at all times. Indeed it was present day and night to look after its own interests, and the safe and convenient coming and going of the persons intrusting themselves to its care. Many trains passed in and out daily, and passengers in great numbers — men, women, children, the weak and the strong — traveled over the platform and paid for the privilege. The municipality has not that ever present and coextensive supervision, nor does it receive compensation from persons traveling upon its streets. It seems to me, therefore, that what might be due care in the one case' might be considered neglect in the other, and that in this particular case, the happening of the accident itself, with the attendant circumstances, was prima facie evidence from which the jury might infer that the defendant failed to exercise that ordinary care which the law requires; that they might conclude that it would not have occurred had the defendant fully performed its duty in the premises; that in the absence of explanation by the party who, more than any other, ought to know, negligence might be found. In other words, that the doctrine of res ipsa loquitur may be invoked and applied, as was done in the following cases:

Where a building adjoining a highway fell and injured a person lawfully thereon. Mullen v. St. John, 57 N. Y. 567.

Where the rail of a trolley road became charged with electricity, so that a horse traveling on the highway and stepping on the rail received a shock, which caused its death. Clarke v. Nassau Electric R. R. Co., 9 App. Div. 51.

Where a span wire, supporting a trolley wire near electric-light wires, broke and fell into the highway, became charged and burned a passer-by. Jones v. Union R. Co., 18 App. Div. 267.

An electric shock to a passenger riding on electric car received from a brass rod guarding the car window, which he grasped. D’Arcy v. Westchester Elec. R. Co., 82 App. Div. 263.

Where a passenger elevator descended with rapidity and struck the bumpers at the bottom of the shaft, with such force as to rebound and cause the counter-balance weights to fall down the shaft, break through the top of the car and injure a passenger inside. Griffen v. Manice, 166 N. Y. 188.

“ There must be reasonable ^evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as, in the ordinary- course of business, does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.” Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297.

See also Timpson v. Manhattan R. Co., 52 Hun, 489; Lycett v. Manhattan R. Co., 12 App. Div. 326; Jordan v. N. Y., N. H. & H. R. R. Co., 165 Mass. 346; Coleman v. Mechanics’ Iron Foundry Co., 168 id. 254; Travers v. Murray, 87 App. Div. 553; Brooks v. N. Y. C. & H. R. R. R. Co., 84 id. 633. Plaintiff’s freedom from contributory negligence was properly found by the jury. McDonald v. Metropolitan St. R. Co., 167 N. Y. 66; Smith v. N. Y. C. & H. R. R. R. Co., 177 id. 224.

The motion for a nonsuit is denied.

The defendant may be deemed to have moved for a new trial on the minutes, pursuant to section 999 of the Code, and prepare an order in which it shall be recited that the motion is entertained and denied, with a stay of thirty days after entry of judgment, and sixty days in which to make case and exceptions.

Ordered accordingly.  