
    Mary E. Ryan, Resp’t, v. The Manhattan R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 15, 1890.)
    
    1. Negligence—Platform: at elevated railroad station—Curved-platforms.
    Where a station upon- an elevated road is located upon a cuive, and is convex to the train, the ends of the car must necessarily he further away from the platform than the middle, and the consequent opening is a necessary result of the practical operation of the road, and the bare fact of its existence cannot be deemed negligence, but if the opening is so wide as to exceed the ordinary and natural step of a passenger, it may become a source of danger, and require further precaution on the part of the company.
    2. Same.
    Plaintiff claimed that the opening between the car step and the station platform was from fourteen to fifteen inches ; that her shoe was nine inches-long, and that it went down straight, although she was looking straight at the car when she fell, but her estimate of distance was unsupported by one witness and contradicted by another. Held, that the charge of negligence was wholly unproved.
    3. Same.
    Three of defendant’s witnesses, a city surveyor, and two civil engineers, testified from measurements that the greatest distance from the platform to the end of the car was seven inches, the centre being from two to four inches. Held, that the defendant company came as close to the platform, with the passing car as was safe and prudent.
    (Ruger, Oh. J., dissents.)
    Appeal zfrom judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered upon a verdict of a jury at the circuit court.
    
      S. B. Rogers, for app’lt; 1. R. Mills, for resp’t.
    
      
       Reversing 17 N. Y. State Rep., 998.
    
   Finch, J.

The negligence charged in the complaint consisted in two omissions on the part of the defendant company: first, in failing to have a platform or entrance way to the car of sufficient or proper width; and, second, in “failing to carefully and prudently maintain and operate the said station platform, car and platform thereto, and the train to which said car was attached.” No evidence was given as to the latter omission except as incidental to the first. It was claimed that the train might have been stopped at a different point _ relatively to the station, and so avoided an undue or improper opening between the station platform and the car platform; but the accusation rests upon the hypothesis that such improper opening in fact existed and seeks only to show the absence of a necessity for it. The two allegations were, therefore, in fact, one: that the defendant company left an improper and dangerous opening in the pathway, of its passengers without any necessity therefor. In this respect the case differs radically from that of Boyce v. Manhattan R. R. Co., recently decided, 28 N. Y. St. Rep., 692. There no negligence was imputed to the company for the existence of the opening, but for leaving it unguarded and unlighted. Assuming that its existence was a. necessity in flhe practical operation of the railroad, negligence was predicated of the omission to properly guard and light it. Ro such omission is charged in this case, but the negligence averred, rests upon the existence of the opening itself as being wider than prudence permitted or necessity required.

Concededly some opening was necessary. The cars must not. scrape the platform of the station and must be far enough away to allow for the oscillation and swaying of the train. On a pefectly straight track three or four inches of separation would be all that necessity required and as much as should be usually maintained. But a perfectly straight line cannot everywhere be constructed. The elevated roads traverse the streets of the city and must reproduce their curves. The supporting pillars mainly follow the lines of the street curbing so as to obstruct as little as-possible the use and occupation of the roadway. Curves therefore are necessary and their presence justifiable. Ro negligence-can be founded upon their existence.

The locality of the stationsis determined by the public convenience. The fundamental law to which the elevated roads owe their existence required them to be sufficient and suitable to accommodate the public travel. They must not be too far apart or too few in number, and must ordinarily be placed at street crossings. There only do they gain sufficient room and light and convenience of access. Such a station on the defendant’s road is located at Grand, street There is no suggestion of impropriety or negligence in establishing it at that point, and the prudence of that location must be taken for granted. But the road at that street follows a. curve, and the station platform necessarily must be made to conform in order to secure a safe and convenient access to the train. It was made to conform to some extent at least But a new necessity thereupon became manifest. The body of a car forms an unbending straight line, and wherever there is a curve becomes, the chord of an arc. If the outer line of the platform, following the curve of the track as it should, to bring all points as near as possible to the train, shows a convexity to the cars, any one of them in passing will have its center nearer to the station than one- or both ends. If the car stops, and the center is within four inches of the platform, one or both ends will be further away, depending upon the character or degree of the curve. It follows, therefore, that where a station is located upon a curve, and is convex towards the train, which becomes a tangent, the closest approach reasonably possible of the center of the car will leave the-ends further away, and in such case that distance and the consequent opening is inevitable, a necessary result of the practical operation of the road, and its presence, the bare fact of its existence, is not and cannot be deemed negligence. But, if the necessary opening is so wide at a given station as to exceed the ordinary and natural step of a passenger, it may become a source of danger, and require further precaution on the part of the company. The locality should be well lighted, so that the passenger can see what the opening is, and it was that omission which was a determining-element in the Boyce case. The question, therefore, presented by this action was whether the opening into which plaintiff stepped was or was not wider than was necessary, and so much so as to produce danger to the passengers.

It was uncontradicted that the track and the platform at Grand street had been unchanged for six years with a single exception. At one time wider passenger cars were substituted for those in use. The increase was about six inches, or three inches on each side. That increase required a corresponding cutting away of the station platforms to enable the new cars to pass, and the fact shows that the old cars ran so close, at some points, as to make three inches more of width in the cars strike the platforms. Tor a time the old cars were used in connection with the new, and to make them correspond metal plates were put upon the car platforms, widening them the added three inches on each side so that the opening which they left remained as before. What the cars gained in width, the platforms lost, and the openings remained unchanged. ’ For six years prior to the plaintiff’s injury these openings had proved, to be safe and not at all dangerous. Whatever was the width at Grand street, thousands upon thousands of passengers, often in a hurry and thronging in crowds, had stepped over it without harm or danger. But a single instance is disclosed to the contrary, and that of so slight a character that it was not reported to the company. How is it possible to say that an opening thus tested by years of use was negligent in its origin or its maintenance? Indeed the plaintiff herself adds to the force of this fact. She had taken the cars at that point a hundred times or more, stepping across the opening without trouble or danger, and gives unconscious testimony to its safety by seeking to show that on this one occasion a change had occurred, and the' opening was wider than usual. Her whole case depends upon that allegation, the burden of which rested upon her. She meets it by a guess.

In her testimony she estimated by the eye that the width of the opening was fourteen to fifteen inches. She did not notice the opening at all until just as she was lifted out of it, and was looking straight at the car and not at the opening when she stepped in. This was contrary to her habit, and without any apparent reason. No one else stepped in the opening. The other passengers seem to have found no difficulty and encountered no risk. She alone, paying no attention to her steps, went blindly into the opening. If she had exercised even ordinary care there is no reason to suppose that her safety would have been endangered. Of course, her theory of a new and unusual width of the opening, founded upon a glance of the eye as she was lifted out of it, could not rise to the level of evidence, unless in some manner fortified and then explained. She sought to fortify it in two ways. She says her foot went down without touching either platform; that her shoe was nine inches long, and she knows it. went down straight. And yet at that moment she was looking directly at the car, and stepped into the opening unconsciously. It is palpable that these details were not observed by her, and that she did not and could not know whether her foot inclined to. the right or left, or went into the gap on a perfect level or not But she went again to the scene of the accident, and took a witness with her, named Ahmuty. The accident happened April 25, 1885. On the 13th of December, 1886, more than a year after the occurrence, she requested Ahmuty to go with her to the Grand street station, showed him the locality of the injury as about six or eight feet from the north end of the platform, and both stood there watching the approach and departure of the cars. Ahmuty estimated the opening as “in the neighborhood of fifteen inches,” but did not measure it, and on cross-examination said that he went again to the same place, at the request of jalain tiff’s counsel, who did not ask him to measure the distance,” but requested him to make a judgment from his eye; and after this second view he says that the opening “ was about fifteen inches, more or less: may be less, not more; it may be less; I can’t say how much less it might be; I do not think it could be eight inches less ; I am not sure about it.” With abundant opportunity to measure the gap and to know its width, the means of ascertainitig the truth seem to have been purposely omitted, and the estimate of Ahmuty is confessedly uncertain and unreliable. But the plaintiff called another witness,, Livermore. He had been a conductor on the elevated road from 1878 to 1886, and had thus become quite familiar with the situation during all that period. . He said the opening between car and platform at the Grand street station was from seven to eight inches, or less than the ordinary step of a child. That closed the plaintiff’s case. She failed to show that the opening which existed was wider than the necessities of the road compelled, or such as to be at all dangerous to passengers. On the contrary her own experience and the result of years of use by thousands of passengers utterly dispelled the charge of negligence unless some ground for the supposed change in the opening could be discovered and put forward as an explanation to rebut the inference from use. That explanation was founded upon the change in the width of the cars. It is said that the car which plaintiff approached may have been one of the old cars, upon which no widening plate had been put or from which the plate had been broken off. There is no evidence of either fact. The suggestion is that of a bare possibility and one. which the evidence of Livermore does not in the least encourage; for he says the plates were p.ut on all the old cars and whenever a piece was broken out, which rarely happened, the car was at once taken out of the train and repaired.

On these facts it seems to me that a verdict for the plaintiff cannot be supported and that the charge of negligence was wholly • unproved. That there was a scintilla of proof may perhaps be said of the plaintiff’s guess at the width of the gap unsupported by one of her witnesses and contradicted by another.' More than that I do not think it possible to say, and that is not enough.

But if to some minds it may seem just and lawful to hang a verdict of negligence and an award of damages upon a guess of the party in interest purposely left untested and unverified, then it may be needed that we follow the further progress of the case and examine the mode of its submission to the jury.

Three witnesses were called for the defendant, who patiently watched the passage of the trains at the Grand street station and measured the distance of the car platforms at the point of the accident from the station platform. One of them was a city surveyor and civil engineer. He said the center of the car was three and a half to four inches away, and six and a half to seven inches at the end. He added: It was seven inches, the largest distance. That is mathematically correct. On that curve, as described by that railroad, it could not have been more than that. I measured fifteen cars and I found as a practical fact that it corresponded with the mathematical demonstration which I made.” Another city surveyor measured the openings made by fifty-seven different cars on as many different trains with results varying from five inches to seven, one car only giving seven and three-quarters. A third witness, also a civil engineer, verified these measurements, and added that the center of each car in passing came within two or three inches of the line of the platform. The first witness measured cars which gave three and a half to four inches. Beyond that there is no contradiction. Ho witness on either side varies from the latter distance more than half an inch. It shows conclusively that the defendant company came as close to the platform with their passing cars as was at all safe or pru-. dent, taking into view their swaying and oscillation, and no reasonable inference to the contrary is possible; so that as an inevitable consequence the gap at the end, whatever its width, could not be made less than it was. There was thus no negligence in its existence as shown by entirely uncontradicted evidence.

The defendant sought to get the benefit to which it was entitled from this proof at the hands of the court in two ways. First, it asked a dismissal of the complaint on the ground that no negligence was shown on the part of the defendant, and the request was refused. The defendant asked the court to charge “ that if the jury find that the space between the car and station platform at the time and place when and where plaintiff stepped between them was not more than eight inches, it was not negligence on the part of the defendant to have such space, and the plaintiff cannot recover.” The- court answered, “ I refuse to charge that as a question of law, but leave it to the jury as a question of fact.”

That is, the jury were permitted to find as a fact that an eight inch opening was negligent in the face of entirely uncontradicted evidence that such opening at that point was absolutely necessary to the safe operation of the trains ; and of the further fact that the ■plaintiff’s claim of negligence was based upon the existence of an opening of twice that width. There was no question of fact about it. Hpon the undisputed proofs on which the request was founded no inference of negligence for the existence of the eight inch opening was possible and the defendant had a right to have the jury so instructed. Zabriskie v. Smith, 13 N. Y., 322; Foster v. The People, 50 id., 601. The respondent makes three answers to this alleged error, all of them seeking to show that the question raised by the request was not purely one of law. He says the jury may have believed that the space was widened by the absence of an iron plate. But the hypothesis submitted negatived that and confined the request to a width of eight inches. Then the respondent says that the request could not be charged as matter of law in view of previous accidents. There were none to break the force of the usage, and the suggestion takes no account of the obvious necessity resting upon the company from the effect of the curve. Finally the respondent says the train might have stopped lower down so as to have avoided the effect of the curve. But the evidence disposes of any such possibility by showing that the consequence would be that the last two cars of the train would have no entrance platform at all. It follows that the court should have charged as requested, and the exception to the refusal was well taken.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur, except Huger, Oh. J., dissenting.  