
    Patrick Catterson, Appellant, v. Brooklyn Heights Railroad Company, Respondent.
    Second Department,
    May 7, 1909.
    Railroad—negligence—duty to provide safe place for passenger to alight—pleading — construction of complaint.
    A complaint, upon a motion "to dismiss at the opening upon the ground that it does not state facts sufficient to constitute a cause of action, must he liberally construed, and the construction, so far as matters of form are concerned, must he in favor of the pleading.
    It is the duty of a common carrier to exercise due care to provide a passenger with a reasonably safe place in which to alight, or to warn him of any known danger.
    A railroad company’s obligation to exercise reasonable care to secure the safety of a passenger accompanied by her infant child, does not terminate as soon as she alights from the car, hut continues until she has had a reasonable opportunity to take the child from a fellow-passenger who is handing it to her.
    Where a complaint alleges that defendant was a street railroad company operating on a street where the pavement was being repaired within two feet of the tracks; that by reason thereof large holes were made in the pavement; that plaintiff's wife who was a "passenger alighted and while taking her infant child from the car, without fault on her part her foot slipped into a hole, and she was injured, and that the defendant knew of the condition of the pavement- and omitted to give plaintiff any warning thereof, the complaint should not he dismissed prior to the introduction of evidence. Upon proof of such facts it would be for the jury to say whether defendant exercised due care to give plaintiff’s wife a reasonably safe place to alight.
    It is not necessary to allege the exact size or location of the hole into which she stepped, and where allegations that the car was brought to a stop near the hole into which she fell, and that the defendant omitted to warn her thereof, are immediately followed by an allegation that the accident was caused by defendant’s negligence, it is equivalent to saying that the bringing of the car to a stop at that place and the omission to give warning were negligent.
    Gaynor,, J., dissented,' with opinion.
    Appeal by the plaintiff, Patrick Catterson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 1st day- of February, 1909, upon the dismissal of the complaint by direction of the court upon the pleadings at- the Kings County Trial Term, and also from an order entered in said clerk’s office on the 4th -day of February, 1909, denying the plaintiff’s motion for a new trial. '
    
      Adolph L. Pincoffs (Edward D. O’Brien with him on the brief], for the appellant.
    
      George D. Yeomans, for the respondent.
   Burr, J.:

"Upon the trial of this action, after a jury had been impaneled, but before any evidence bad been introduced by -the plaintiff, the court dismissed the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. Upon such a motion not only must the complaint be liberally construed (Code Civ. Proc. § 519), but such construction, so far as matters of form aré concerned,- must be in favor of and not against the pleading. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451; Rochester R. Co. v. Robinson, 133 id. 242; Howe v. Hagan, 110 App. Div. 392; Naylor v. N. Y. C. & H. R. R. R. Co., 119 id. 24.) In the Coatsworth Case (supra) the court said : “Under the more recent authorities pleadings are not to be construed strictly against the pleader, but averments which sufficiently point out the nature bf the pleader’s claims are sufficient if under them he would be entitled to give the necessary evidence to establish his cause of action.” In the Howe Case (supra) and in the Naylor Case (supra) this court has followed tin’s rule, making use of the same language. Under the complaint in this action the plaintiff could prove that the defendant was a street railroad corporation operating its cars through Graham avenue, in the borough of Brooklyn; that on the 7th day of August, 1906, the pavement on Graham’avenue within two feet of the tracks of the railroad company was being repaired; that some of the paving blocks had been taken out, leaving large holes in the pavement; that on the date mentioned plaintiff’s wife, having an infant child in her care, was' a passenger on a car of the defendant, which came to a full stop at the corner of Graham and Driggs avenues; that plaintiff’s wife alighted, and while in the act of taking her infant child from the car, without any fault on her part, her foot slipped into one of- the above-mentioned large holes in the pavement, causing her to fall, and that she thereby sustained injuries. He could also prove that the defendant knew that the pavement was being repaired, and the condition of the street in consequence thereof, and omitted to give the alighting passenger any notice or warning that such pavement was being repaired, and that there were large holes in such pavement as a consequence thereof. Upon such proof being made it would be for the jury to say whether the defendant exercised due care to give the plaintiff’s wife a reasonably safe place to alighh This it was the duty of the defendant to do, or to warn her of existing danger known to it. (Wells v. Steinway R. Co., 18 App. Div. 180; Wolf v. Third Avenue R. R. Co., 67 id. 605; Flack v. Nassau Electric R. R. Co., 41 id. 399; Onderdonk v. New York & Sea Beach R. Co., 74 Hun, 42; West Chicago St. R. Co. v. Cahill, 64 Ill. App. 539; Bass v. Concord St. R. Co., 70 N. H. 170.) The duties and obligations of a common carrier to exercise reasonable care to secure the safety of the plaintiff’s wife did not terminate at the moment when she had alighted from the car, but continued until she had a reasonable opportunity to take her infant child from the hands of a fellow-passenger who was handing it to her. (McKone v. Mich. Central R. R. Co., 51 Mich. 601; Jeffersonville, M. & I. R. R. Co. v. Riley, 39 Ind. 568; Tobin v. Portland, S. & P. R. R. Co., 59 Maine, 183.) It was not neoessary to allege in the complaint the exact size of the hole nor the exact distance from. the track. These were evidentiary facts. It was enough to allege that it was less than two feet from the track, and that it was sufficiently large to cause the passenger to fall when, without fault on her part, she stepped into it. It was not necessary to allege that it was dangerous; that could be inferred from the fact of the fall as a consequence of stepping into it. The allegations of the complaint respecting the conduct of the defendant in bringing the car to a stop in close proximity to this large hole in the pavement, and in omitting to warn the plaintiffs wife of its existence, is followed by the allegation that the “ accident was caused by the negligence of the defendant.” This is equivalent to saying that the act and the omission above referred to was a negligent áct and omission.

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

Hirschberg, P. J., Rich and Miller, JJ., concurred; Gaynor, J., read for affirmance. ,

Gaynor, J. (dissenting):

It is trite that there can be no complaint for negligence without an allegation of some negligent fact, i. e., some fact causing the injury, and alleged to be caused by the negligence of the defendant. There is no such allegation in this complaint. It is alleged that the defendant ran a car line “ along Graham avenue ” ; that the: pavement on the said avenue within two feet of the car tracks was being repaired—-by whom is not alleged — and that there were large holes therein “where some of the blocks had been taken out”; that the car on which the plaintiffs wife was a passenger stopped at the corner of the said avenue and another avenue; that she got out, and that while “ taking up said child ”, who had been handed out Of the car by another passenger, “ her foot slipped into one of the holes ” already mentioned, which caused her to fall; that the fact that said pavement was being repaired was known to the defendant ; and that' it failed to give the plaintiff’s wife any notice or warning of the condition thereof. There is no other allegation of fact — this is all. Ho act of the defendant or of any one else is alleged as negligent ; nay, no act at all of the defendant is alleged. Eor is any omission by it alleged, except that it did not notify or warn the plaintiff that the street was being repaired. But it is not alleged as a negligent omission; and the condition of the street was in full sight, and there is no allegation that the plaintiff did not see it or know it.

It is said that under these allegations the plaintiff could prove that the repairing was going on and the condition of the street therefrom, that her foot slipped into one of the holes, and that the defendant knew the repairing was going on and the condition ■ of the street and omitted to give the plaintiff warning or notice thereof; and that upon such proof being made “ it would be for the jury to say whether the defendant exercised due care ”. But that is begging the whole question. The jury could not be permitted to do any such thing unless the complaint contained the necessary allegation of negligence ; and the very point before us is whether it does. If it does, of course it would be for the jury to find whether there was negligence, but if it does not, the case could not get to the jury at all.

The said allegations are immediately followed by this general allegation, “ and that said accident was caused by the negligence of the defendant, its agents and sei’vants ”. This does not make a complaint for negligence. It alleges no fact of negligence. There is no such thing as an allegation of negligence except by an allegation of some fact causing the injury, and alleged to be caused by the defendant’s negligence. Are we to hold otherwise in order to save this slovenly and stupid complaint, when our method of pleading is so simple % Ignorance in our profession does tod much harm to be encouraged. Are we to say that a bald allegation that the “accident” — and moreover an accident is never actionable— “ was caused by the negligence of the defendant ” makes a good complaint, and that it is not necessary to allege the fact that caused the injury and that it was caused by the defendant’s negligence ? It would be contrary to the uniform rule in trial courts from the beginning. Once the profession be informed • that such a general empty allegation suffices, the complaint may as well be done away with in negligence actions, for, inasmuch as it would inform the defendant of no issue of fact, it would be a dead letter and useless.

The case of Oldfield v. N. Y. & Harlem R. R. Co. (14 N. Y. 310) is cited for such a proposition only through inadvertence as to the fact in’ that case. It is at the back of every suggestion to be found that such a general barren allegation makes a good complaint. A general remark in the opinion of Judge Wright therein is quoted for the said proposition, which is without any other support anywhere in the literature of pleading, viz.: The complaint averred that the death was caused by the negligence and default of the defendants and their agents and servants. This authorized evidence of- the defendants’ neglect or misconduct tending to produce the injury, without a more particular statement in the pleading”. If the exact statement on the same head by Judge Comstock in his opinion in that case be also quoted, no such extravagant meaning could be attributed tó the court, for both opinions together were concurred in by the full bench, viz.: “ In the course of the trial evidence was received to show that there were no guards in front of the wheels of the defendants’ car. The complaint alleges that the car was driven over the child carelessly cmd negligently by the defendants’ servant, and it says nothing about the guards; and on this ground it was insisted that the evidence should not be admitted ” ; and then the learned judge says that the evidence Was admissible, not to enable a recovery to be had for lack of a fender, but on the ground of whether the car as it was, was carefully managed, for (as he continues) what would be prudent and careful in the management of a well-constructed car, provided with brakes and guards to prevent injury in case of accident, might be imprudent and careless in driving a car not thus provided ”. Here we are fully informed that the complaint alleged the fact which caused the injury, and that such fact was caused by the negligence of the defendant; viz., that the defendant negligently ran over the child in the street with its car, instead of alleging no fact of negligence. The case is therefore no authority whatever , for the proposition that a general allegation like that in this complaint suffices to state a cause of action.

A general statement in the opinion in Edgerton v. N. Y. & Harlem R. R. Co. (39 N. Y. 221) is also cited in support of the said proposition, viz.: “ The complaint contained a general averment, that the injury was received from the negligence .of the defendant and its employees, and it is therefore immaterial, whether the proof established the particular negligence specified in the complaint, some negligence being shown ”. This has also to be tested by reference to the complaint in that case to see what such “ general averment ” was. That we learn from the report of the case below (35 Barb; 389, 392). There we are informed in the opinion that the complaint contained “ a general allegation that the occurrence ”—the jumping of the railroad car the plaintiff was in from the track, the fact that caused the injury —■ “ happened, and the injuries of the plaintiff were received, * *. through the negligence and want of care of the defendants It is added that “ This is a sufficient allegation to include any negligence ” — by which was obviously meant, to speak with scientific accuracy, to “include” or permit evidence of any act or omission tending to show that the negligent fact alleged, namely, the jumping of the car from the track, was caused by the defendant’s negligence. For instance it might be proved that the car wheels ór the track was defective and broke.

These two obiter expressions were cited in Roblee v. Town of Indian Lake (11 App. Div. 435); Leeds v. N. Y. Telephone Co. (64 id. 484) and Murphy v. Milliken (84 id. 582); but it is manifest on a perusal of these cases that nothing was actually decided in any of them which controls the present case.

We have been recently admonished by the Court of Appeals not to accept as controlling anything in the opinions emanating from it which is outside of the exact point which was before it by the record in the case. “ A judicial opinion, like evidence, is only binding so far as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance. The failure to read the opinions of courts with this fact in mind gives rise to much fruitless litigation” (Colonial City T. Co. v. Kingston R. R. Co., 154 N. Y. 493). Following this admonition, we should be careful not to accept literally the expressions which have been cited from the Oldfield and Edgerton cases as law. They were uttered with reference to the allegations in the complaints in those cases, and must be restricted to that sense.

The judgment should be affirmed.

Judgment and order reversed and new trial granted, costs to abide the event.  