
    Ellen A. Kelly, as Adm’x, etc., Resp’t, v. The Manhattan Railway Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Negligence—Elevated bailroad—Liability fob injtjbies received FROM DEFECTIVE CONDITION OF THE APPROACHES TO ITS CABS.
    The strict rule which holds a common carrier to the exercise of the utmost care, so far as human skill and foresight can go, for injuries sustained by passengers, does not apply to the approaches to its cars, such as platforms, halls and stairways of its stations. In such case the carrier is bound, simply, to exercise ordinary care, in view of the damages to be apprehended.
    
      ■%. Same—Cabe of steps leading to train.
    While plaintiff’s intestate was descending the stairway of a station of the defendant’s railway he slipped upon a step and sustained injuries from which he died. The night was cold and stormy, snow fell, mixed with sleet,, and the streets were rendered very slippery. The deceased knew this. The storm commenced about midnight and continued until between three and four o’clock in the morning. The accident took place between half-past five and six. Held, that the failure to throw ashes or sawdust upon the steps of the stairways to the station during the storm cannot be' regarded as negligence, where the continuance of the storm would soon render them as slippery as before; that negligence cannot be predicated upon a failure to clean off the steps in the brief period at such a time during the night, between the time when the storm ceased and the time when the accident happened.
    S. Same—Error in charge to jury.
    It was error for the trial judge to instruct the jury that it was the legal duty of the defendant to use all human care, caution and skill to make the ingress and egress to the defendant’s station safe, and that defendant was required to use all the skill, all the diligence and all the care that a very cautious human being would use if he were looking after the protection of his own life and health.
    
      4. Same—What too bioid ehle of liability.
    The trial judge charged the jury: “ If you come to the conclusion that they were slippery at that time, and that means might have been taken to prevent fluir being so, and that by reason of their slipperiness plaintiff fell, as has been stated, then, so far as this issue goes, the jury will be justified in finding for the plaintiff.” Held, that this charge was erroneous, as-laying down a too rigid rule of liability.
    This is an appeal by the defendant from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon the verdict of a jury for the plaintiff, in an action to recover damages for an accident resulting in the death of the plaintiff’s decedent in January, 1886.
    Upon the trial of the action, the evidence on the part of the plaintiff tended to show the following facts: The de-
    ceased, in company with his brother-in-law, left the saloon kept by the latter on the southwest corner of Thirty-fourth street and First Avenue, in the city of New York-about twelve o’clock at night, on the 16th of January, 1886, and walked to a saloon kept by a friend where they remained until between three and four o’ clock. During nearly all the time they were in the latter place, the deceased was-asleep, and his companions were playing cards. Between three and four o’clock in the morning they left the saloon, and took a train on the elevated road at Thirty-fourth street and went to the One Hundred and Sixteenth street station, where they arrived about half past five in the morning.
    Where they went and what they were doing, between the time they left the saloon of their friend and the time they arrived at the Thirty-fourth street station, does not very clearly appear. The night in question, as testified to by the friend of the deceased, was quite cold, and from before twelve until between three and four o’clock in the morning it was snowing, or in his language, “it was sleet, not extra hard, it was a mixture of snow and hail:” and to avoid the snow and hail they passed the time in the saloon until the hour mentioned, which was Sunday morning. It was quite dangerous walking along the sidewalks, the snow and hail making it very slippery and it was freezing considerably. The deceased and his companion got out at the One Hundred and Sixteenth street station and went down the stairs leading to the street. When on the third step from the bottom the deceased fell and sustained a fracture of the leg, called by the surgeon a “ Potts” fracture. He was a large man, weighing about 225 pounds, and after the accident was taken to the hospital where he remained until Wednesday morning. Delirium having in the meantime set in he was removed to Bellevue hospital where he died the same-day. The surgeon in charge of the hospital where he was-first taken stated that the delirium was, as he thought,, what is known as tranmatic delirium, which he stated is indistinguishable from delirium tremens; and there was evidence given on the part of respondent tending to show that the deceased before the accident had been drinking very freely and that the delirium from which he died was delirium tremens.
    The brother-in-law of the deceased testified that the steps leading from the train to the street below were very slippery at the time of the accident, and that there was no evidence of any ashes or sawdust, or any thing of that nature having been spread upon them to prevent people from slipping, nor was there any evidence of any attempt at removing the substance, whatever it was which had accumulated upon the steps.
    The steps were inclosed the height of a hand-rail, and from .the hand-rail to the roof they were open. They were covered with a roof which projected about a foot on each side of the stairway, and the hand-rail on each side could easily be grasped to aid in ascending or descending the stairs.
    At the end of all the evidence in the case, there was a motion for a nonsuit upon the ground, among others, that there was no evidence of negligence on the part of the defendant, which was denied, and counsel for the defendant excepted.
    The learned judge, in his charge to the jury, said, among other things, that in this case ‘
      
       the legal duty of the defendant was to use all human care, caution and skill to make their ingress and egress from the station safe. They are not called upon by the law to guarantee perfect safety, but they are required to use all the skill, all the diligence, all the care that the most cautious human being would use if he were looking after the protection of his own life and health.” Upon exception the latter part of the charge was modified by the court by saying “a very cautious,”instead of the words “the most cautious,” human being would exercise, and as modified, counsel for the defendant duly excepted to it.
    In speaking of the condition of the stairway or steps at the place of accident, the learned judge also said: “If you come to the conclusion that they were slippery at that time, and that means might have been taken to prevent them from being so, and that by reason of their slipperiness the plaintiff fell, as has been stated, then gentleman, so far as this issue goes, you will be justified in finding for the plaintiff. ” To which portion of the charge exception was duly taken by defendant’s counsel.
    In response to a request to charge on the part of the defendant, the court again said: “ I hold that in the case of the defendant it is bound to use the utmost care in keeping its steps free from slipperiness, and free from danger on that account, as long as and while it is carrying passengers, who, in their ingrees and egress from the station, are ■obliged to use those steps, and that in the case now before the court there is no evidence of any instantaneous or recent cause of slipperiness which would render the charge, •as requested, necessary.” An exception was duly taken to the charge as given.
    
      Howard Townsend, for app’lt; Henry H. Spelman, for resp’t.
    
      
       Reversing 8 N. Y. State Rep., 128.
    
   Peckham, J.

The rule in relation to the liability of railroad corporations for injuries sustained by passengers under such circumstances as this case develops, differs from that which obtains in the case of an injury to a passenger while he is being carried over the road of the corporation, and where the injury occurs from a defect in the road-bed, machinery, or in construction of the cars, or where it results frdm a defect in any of the appliances, such as would be likely to occasion great danger and loss of life to those traveling on the road. The rule in the latter case requires from the carrier of passengers the exercise of the utmost •care, so far as human skill and foresight can go, for the reason that a neglect of duty in such a case is likely to result in great bodily harm, and sometimes death, to those •who are compelled to use that means of conveyance. As the result of the least negligence, may be of so fatal a mature, the duty of vigilance on the part of the carrier re-' •quires the exercise of that amount of care and skill in order to prevent accident. See Hegeman v. The Western R. R. Corp., 13 N. Y., 9. But in the approaches to the cars, such as platforms, halls, stairways and the like, a less degrees of care is required, and for che reason that the consequences of •a neglect of the highest skill and care which human foresight ■can attain to, are naturally of a much less serious nature. The rule in such cases is that the carrier is bound simply to exercise ordinary care in view of the dangers to be apprehended.

We have lately had cases of this character before us, and in the case of Laffln v. Buffalo, etc., R. R. Co. (106 N. Y., 136; 8 N. Y. State Rep., 596), where a passenger was injured in stepping from a car onto the platform, because, as he alleged, the platform was too far from the steps of the car, this rule was announced (opinion per Earl, J.): “The company was not bound so to construct this platform as to make accidents to passengers using the same, impossible or •to use the highest degree of diligence to make it safe, convenient 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:”

In Morris v. N. Y. Central, etc., R. R. Co. (106 N. Y., 678; 7 N. Y. State Rep., 863) a passenger was injured by the falling upon him of a clothes wringer placed in a rack over his seat by another passenger; and the court held the measure of care required of a carrier of passengers in such a case was not the highest care which human vigilance could give, but that the company was only to be held to reasonable care to be measured by the circumstances surrounding the case.

In Palmer v. Pennsylvania Company (111 N. Y., 488; 19 N. Y. Rep. State Rep., 493) it was held that the rule requiring the utmost possible care in discovering defects in the trucks and running machinery of a road did not apply where a passenger was injured by slipping on the platform of a car which had become slippery on its passage during the night because of a storm which was raging during that time.

It was said in that case by Rug-er, Ch. J., that “the trial court was not justified 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.”

And again the learned judge said: “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 travelers. 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.” See also Unger v. Forty-second Street R. R. Co., 51 N. Y., 497.

In applying this rule of reduced liability to the case in hand, we are unable to see from the evidence on the part of the plaintiff that the defendant was guilty of such negligence as would permit the recovery of a judgment for the injury sustained by the deceased. The night was cold ánd stormy. Snow fell mixed with sleet, and the sidewalks were rendered very slippery. This the deceased knew, for he walked upon them from the saloon to the Thirty-fourth street station. The storm commenced about midnight, and ■continued until nearly four o’clock in the morning, and this accident happened between half-past five and six o clock. The defendant had furnished a covered stairway with hand rails and pieces of rubber on each step to prevent slipping, and the failure to throw ashes or saw-dust, or something of that character upon the steps during the storm cannot be regarded as negligence, because the continuance of the storm would soon render the steps as slippery as before: and it seems to us that culpable negligence cannot be predicated upon the failure to clean off the steps between the time the storm ceased, which was between three and four o’clock in the morning, and the time when the accident happened. So brief a period as that, at such a time in the night, cannot, we think, be regarded as any evidence of a lack of that reasonable care which the defendant was bound to exercise.

Great reliance was placed on the argument upon the case -of Weston v. The New York Elevated Railroad Company (73 N. Y., 596), but we think that case does not control this one. In the Weston Case the plaintiff sustained injury by falling upon an uncovered platform between a waiting room and the defendant’s cars, and over which platform it was necessary to pass to reach the cars, and which platform the defendant had negligently suffered to become covered with snow and ice, rendering passage over it insecure and dangerous. The evidence showed that during the day, and before the accident happened, it had snowed, and the snow had been but partially removed from the platform. The plaintiff while proceeding with caution lost his footing, fell and was injured. The evidence showed that other passengers at about the same time slipped upon the platform. There was no difficulty in making the platform safe, and the accident happened in the day-time. A verdict for the plaintiff was upheld in the court below, and sustained in this court.

The court below had charged that the defendant was bound to be on the alert during cold weather, and to see whether there was ice upon the platform, and to make it safe by putting sand or ashes upon it, or in some other way. This court held that that was not too stringent a rule. This case, we think, materially differs from that «one. Here there was a continuous storm of sleet and snow from about twelve to four o’clock, and within two or three hours after the storm ceased, and in the very early morning the accident occurred. The staircase was covered and the roof projected a foot on each side of it. There were rubber tips on each step and a hand-rail on either side to aid passengers in going up and down the stairs. Under such circumstances, the duty even of alertness on the part of the defendant was not omitted by a failure to render "the stairs less slippery at such a time in the night and within the period named.

We think the motion for a nonsuit should have been .granted.

Again, the learned judge, in his charge to the jury, fell into error when he stated the obligation of the defendant upon, the facts of this case. Under the cases above cited it was error to instruct the jury that it was the legal duty of the defendant to use all human care, caution and skih to make the ingress and egress to the defendant’s station safe. This statement of the law was not in any manner explained or taken back. He also stated that the defendant “was required to use all the skill, all the diligence and all the care that the most cautious human being would use if he were looking after the protection of his own life and health.” Upon exception being taken to that remark, he .altered it by saying “a very cautious” instead of “the most cautious” human being. The charge in both forms was erroneous under the authorities already cited.

We think he also erred in his charge with reference to the condition of the stairs when he said: “If you come to the conclusion that they were slippery at that time, and that means might have been taken to prevent their being so, and that by reason of their slipperiness the plaintiff fell as has been stated, then so far as this issue goes the jury would be justified in finding for the plaintiff.”

This charge practically made the company liable for the slipperiness of the steps, if by the exercise of the greatest care and skill which human foresight could think of, such condition could have been prevented. Of course, such condition could have been prevented by stationing men at ■each stairway, constantly engaged sweeping and cleaning the steps; or, if one man were not enough'to do it, then under this ruling, others should have been employed. And, under this charge, if the storm were so severe as to require it, one man on each step should have been employed.

Ho such rigorous rule exists in our judgment.

These views lead to a reversal of the judgment, and to the granting of a new trial, with costs to abide the event.

ALL concur, except Danforth, J., not voting.  