
    Mary Gibson, Respondent, v. New York Consolidated Railroad Company, Appellant.
    First Department,
    June 2, 1916.
    Railroad—negligence — injury to passenger alighting from train — foot caught in space between car step and station platform.
    A plaintiff who was injured when alighting from a train which had stopped at a station platform, by catching her foot between the step of the car and the platform, is not entitled to recover, where the opening ' was only from five and a half to seven and a half inches, and there was no crowd or other circumstances requiring the defendant to warn passengers.
    
      Appeal by the defendant, New York Consolidated Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of January, 1916, upon the verdict of a jury for $500.
    
      Harold L. Warner, for the appellant.
    
      Richmond J. Reese, for the respondent.
   Smith, J.:

The plaintiff with three children boarded one of the defendant’s cars at Coney Island. After the passengers were in the car and she was seated she ascertained that she was upon the wrong train and started out with her children. In stepping off the platform of the car her foot passed down between the step of the car and the station platform, injuring her leg and thereafter causing a miscarriage, as she alleged. She swears that the distance between the edge of' the step and the station platform is eight and a half inches. Her son, who was with her, swears to a distance of seven and a half inches. The proof by the defendant’s witnesses is that it could not have exceeded five and a half inches. The weight of the evidence is to the effect that the distance was from five and a half to seven and a half inches. Upon this fact alone negligence seems to be charged. There was no crowd passing off the car which would require any warning to passengers generally. This space may be deemed within the evidence to be fairly necessary so that the oscillations of a car as it passes the platform will not throw it into the platform. It may be assumed generally that where passengers are alighting they will watch their steps, unless the crowd is so intense that they cannot. It has, therefore, been held in Woolsey v. Broolyn Heights R. R. Co. (123 App. Div. 631) that a space of ten inches between a step and the platform was not negligence of itself, but that circumstances might arise to impose upon a company the burden of giving warning of that space. In Lafflin v. Buffalo & Southwestern R. R. Co. (106 N. Y. 136) it was held that a space of eleven inches between a step and the platform was not sufficient of itself to charge the defendant with negligence. To hold in the case at bar a maximum space of seven and a half inches between the car step and the platform would be of itself proof of the defendant’s negligence which would authorize the plaintiff’s recovery for injury therefrom, would in our judgment be wholly unwarranted, and the judgment must, therefore, be reversed, with costs, and the complaint dismissed, with costs.

Clarke, P. J., Laughlin, Scott and Davis, JJ., concurred.

Judgment reversed, with costs, and complaint dismissed, with costs.  