
    Mary E. Ryan, Resp’t, v. The Manhattan Railway Company, Appl’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    Negligence—Defective platform at railroad station—Evidence — When plaintiff entitled to recover.
    Where in an action for personal injuries caused by falling through an open space between the station platform and defendant’s car while plaintiff was attempting to get aboard, it appeared by this evidence that this space was nearly fifteen inches in width; that plaintiff’s shoe over nine inches long went through without touching either toe or heel; that in order to adapt it to new cars a part of the station platform had been cut off, and that the platforms of the old cars were extended by means of iron plates about three inches in width and they would occasionally come off and the cars would be run in that condition; that the usual space between the platform and car was about five inches; that plaintiff was without fault; that she could not see below in consequence of there being a crowd of passengers around her, that similar accidents had occurred before at this same platform. Held, that the plaintiff was entitled to go to the jury upon all the evidence and that a judgment for plaintiff should be affirmed.
    Appeal from a judgment in favor of plaintiff entered upon a verdict of a jury at the circuit court.
   Barnard, P. J.

The general rule of duty imposed upon the defendant, as a carrier of passengers, was to furnish a safe place and means for the passengers to get on and off the cars. The plaintiff avers 'that the space between the platform of the car and the station platform was too great, being some fifteen inches, and that in consequence thereof, she fell through the open space and was injured. The proof is apparently very conflicting. The plaintiff and one Ahmuty, both testify to a space of about fifteen inches and on the other hand three engineers 'made measurements in over fifty instances, and the space was not in any case over seven and three quarter inches. The plaintiff testifies that her foot went through without touching either toe or heel, and that the shoe was over nine inches long. There had been previous accidents from the same cause at the same place. The evidence shows that the station is constructed on a curve, so that the middle of the car is nearer the platform than either end. That the platform was originally constructed for a smaller car, and when a large style was subsequently put on. the platform of the station was cut away to permit their use, and the platform of the old cars was supplemented by a flat piece of iron of some three inches in width, fastened on the top of the platform. The measurements on the part of defendant did not take in all the defendant’s cars. It was proven that occasionally the plate got off the old cars, and that the car was used while in this condition. The plaintiff was accustomed to travel in the cars and get on and off at this station and knew the usual space between platform and car was about five inches. upon all this evidence, it is such a question of fact that the plaintiff was entitled to go to the jury, and the case is not within the principle decided in Laffin v. Buffalo and S. R. R., 106 N Y., 136;8 N Y. State Rep., 596.

If the proof upon the part of the plaintiff is to be credited, there must have been unusual space on this particular occasion, between platform and car. The plaintiff was injured in consequence. She is proven to have been without fault. She could not see below. A crowd surrounded her of passengers getting in the car. The step was short and relying on the usual space she fell through.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.  