
    Ellen Kelly, App’lt, v. The New York and Sea Beach Railway Co., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 20, 1888.)
    
    Negli&ence—Railroad—Duty or railroad to inspect cars, etc.
    On the trial of an action for damages for injuries resulting from the alleged negligence of defendant, it appeared that as plaintiff was getting out of one of defendant’s cars, her clothing caught in a hook and she was thrown to the ground and sustained a fracture of her arm. The car was an open summer car and the hook in question was on a side curtain, which dropped down between stanchions to shut out the wind and rain. One of the hooks on one of these curtains had the spring therein broken. In the point of this hook, exposed by-reason of said break, plaintiffs clothing caught. Eeld, that a defective broken hook was not of such a dangerous character as to require the very highest degree of diligence to discover and remove it. Danfoeth, J., dissenting.
    Appeal from a judgment of the supreme court general term, second department, affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury rendered at a circuit court.
    
      Henry H. Man, for app’lt; Charles H. Patterson, for resp’t.
    
      
       Reversing 39 Hun, 486.
    
   Earl, J.

—On Sunday, August 24, 1884, the plaintiff entered one of the defendant’s cars to return from Coney Island to the city of New York, and as she was getting out of the car at the end of her journey, her clothing caught in a hook and she was thrown to the ground and sustained a fracture of her arm. She subsequently brought this action and recovered a verdict of $1,000. The defendant assails the recovery claiming that there was no evidence of culpable negligence on its part causing the accident, The car was an open one for summer use, and on the side curtains dropped down between stanchions to shut out the wind and rain. The two inner edges of the curtains as they hung down came together and were fastened, when it was desired to keep them together, by a ring upon one side and a hook with a spring upon the other, called in the evidence a snap-hook. When the spring was in place the hook and spring formed a loop or ring. On the day of the accident the spring in one of the hooks upon one of the curtains of the car was broken, and it was into the point of this broken hook that the plaintiff’s clothing caught as she was leaving the car.

The only proof of negligence given by the plaintiff was that the spring of the hook was broken and that the point of the hook was thus exposed. There was no proof showing how or when the spring was broken, nor how long it had been broken; nor was there any proof that by any degree of diligence or care incumbent upon the defendant it could have known of its defective condition. The hooks broke in no other way than by use, and from aught that appears, this hook may have been broken by some person after the car started upon that trip.

The defendant gave evidence showing that all the Coney Island cars were furnished with the same kind of curtains and hooks, and that there was no better way known of fastening the curtains; that its road had been operated for several years and carried more than a million of passengers every year, and that such an accident had never before occurred; that the springs in the hooks would sometimes break by use; that at the end of every trip the cars were inspected by persons assigned to that duty, and the curtains examined, and if a broken hook was discovered it was taken off and replaced by a perfect one.

It is difficult to perceive what more the defendant could have done or was bound to do. A defective, broken hook was not of such a dangerous character as to require the very highest degree of diligence to discover and remove it. It was not more dangerous in this car than it would have . been elsewhere where people were passing. No prudent man. would have anticipated such an accident as this or apprehended such an injury from a broken hook.

Upon all the evidence, therefore, we are of opinion that the trial judge should have held as matter of law that the plaintiff failed to establish a case entitling her to a recovery.

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

All concur, except Danforth, J., dissenting.  