
    Emma Bateman, Resp’t, v. The New York Central and Hudson River R. R. Co. App'lt.
    ■(Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    1. Sidewalks—Care as to condition of—What degree required. ,
    This action was brought to recover damages for injuries alleged to have been received through the defendant's negligence, and immediately caused by a depression in a sidewalk leading from the defendant’s depot to the street. Held, that the measure of care required of the railroad, with regard to the sidewalk, was co-extensive with that with which municipal corporations are chargeable under like circumstances.
    2. Negligence—When a question for the jury.
    
      Held, that where the irregularity, which existed in the surface of the sidewalk at the time of the accident, was such that the jury might fairly draw the inference that it was negligence, on the part of the defendant, to maintain it in such condition, the appellate court was bound to hold, as a matter of law, that the jury had a right to pass upon the question as one of fact.
    3 Same—Measure of damages—Rule as to future.
    
      Held, that an instruction to the jury that the plaintiff was entitled to recover for such injuries, as it was reasonably certain that she would suffer thereafter, was correct, reasonable certainty being all that could be entertained with regard to the future.
    
      4. Evidence—Memoranda—When competent.
    Two persons examined the depression in the sidewalk, the one making measurements and the other observing that they were correct. The former then entered them on a memorandum, which the latter signed. The latter, being called as a witness, stated that he knew the memorandum to be true when he signed it but was not able to state the figures without recourse to it, and that examination of it did not refresh his memory. Held, that it was proper to allow him to testify from the memorandum.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of the jury at the Albany circuit.
    The action was to recover for injuries alleged to have been received by the plaintiff in consequence of a defective sidewalk, leading from the defendant’s passenger depot, in Albany, to Maiden lane, a public street. The plaintiff arrived in Albany at I:30 o’clock, on the evening of March 22,1884, as a passenger upon defendant’s train, passed from the cars through the depot, and was walking upon the sidewalk leading along the west side of the depot towards Maiden lane. It was after dark, the place dimly lighted, and some rain had just fallen. At the southerly end of the depot there is a drive-way for the baggage and freight wagons, at right angles across the sidewalk, up to the driveway, the sidewalk was made of flagstones, with a curbstone upon the outside. The drive-way was made of three rows of flagstones, laid lengthwise, with paved space about a foot wide between each row of flagstones. The outer row of flagstones and the paving blocks outside of it were so laid as to conform to the grade of the wagon-road outside. There was no curbstone there. The most northerly flagstone of the outer row across this drive-way, was a poor stone, and had become worn or scaled off by the impact of the wagon wheels upon it, or by the action of the frost, and as a consequence, a depression in the sidewalk existed there of the size of the upper face of the stone, which was three feet long and twenty-two inches wide. At the north end of the stone the depression was three and a half inches lower than the upper face of the flagstone upon the sidewalk next north of it, and the depression increased an inch and a half from the north to the south end of the stone. This depression was covered by rain water. The plaintiff while walking upon the outer-side of the walk stepped into this depression without noticing it, partly fell and broke her ankle. About 4,000 people daily passed over this walk, and no one was ever injured there before.
    
      H. Harris, for app’lt; N. C. Moak, for resp’t.
   Landon, P. J.

The walk upon which the plaintiff was injured, was maintained by the defendant upon its own land, as a sidewalk for passengers coming and going between its passenger depot and the public street. We think the measure of care due from the defendant to its passengers whom it invites to use it, is the same that is required of a municipal corporation with respect to its public sidewalks, which it is required by law to maintain. We can perceive no valid reason why its duty should be any more or less stringent. When a railroad company is in the act of carrying passengers, the passenger cannot participate in the management, but commits his safety to the care of the company, and becomes the passive object of its protection. When he is upon a sidewalk he can take care of himself, if it is reasonably safe for public travel. In the former case the highest diligence and care are necessary for safety; in the latter case a less degree of care and diligence will suffice. It is reasonable care and diligence measured by the circumstances of each case. This distinction is pointed out in recent cases, in which the facts would seem to call for as strict a measure of care as in this case. Morris v. N. Y. C. and H. R. R. R.Co., 106 N.Y., 678; 11 N.Y. State Rep., 204; Lafflin v. B. and S. R. R. Co., 106 N. Y., 136; 8 N. Y. State Rep., 596; Weston v. N. Y. Elevated R. R. Co,, 73 N. Y., 595.

Tested by the rules applicable to streets and sidewalks in cities and villages, we are called upon to say whether, as was suggested in Goodfellow v. Mayor (100 N. Y., 19), the irregularity or depression in this pavement was so slight that the court would be justified in holding as a matter of law that it was not negligence on the part of the railroad company to omit to repair it. The irregularity or depression is less in this case than in the one cited, and less than in Clemence v. Auburn (66 N. Y., 334), in both of which the question was held to be one of fact for the jury. No doubt this case is near the border line. Where different inferences may fairly be drawn from the same circumstances the jury should draw the decisive inference.

We cannot set aside the verdict as “contrary to the evidence,” for it is not, if the jury could fairly draw the inference they have drawn. We think we are obliged to hold as a matter of law that the jury had the right to pass upon the question as one of fact.

We do not think there is any ground to disturb the verdict because of the alleged contributory negligence of the plaintiff.

The court, we think, properly submitted the question of prospective damages to the jury. The instruction was that the plaintiff was entitled to recover for such injuries as it is “reasonably certain that she will suffer hereafter.” Reasonable certainty is all that can be had with respect to the future. The cases hold that that is enough. They also hold that where the evidence leaves the case so balanced or conjectural that reasonable certainty is not shown, the case is not made out. ■ If the best that can be said with respect to a continuance of the injury or suffering is, that it may be so, and it may be not, then there is a failure of proof in that regard. Strohm v. N. Y., L. E. and W. R. R. Co., 96 N. Y., 305; Mosher v. Russell, 6 N. Y. State Rep., 407.

Hence the evidence tended to show that the plaintiff had not recovered from the injury. If the jury believed that evidence, they had to give it some weight upon the question of damages.

The testimony of the witness Birch was properly received. He and the witness Cole examined the depression in the sidewalk. Cole made the measurements and Birch observed they were correct. Cole entered them upon a memorandum, which Birch signed. Birch testified that he knew the memorandum to be true when he signed it, but without recourse to the memorandum he could not state the size of the several dimensions. Looking at the figures did not refresh his recollection as to what the dimensions were. He could only state them as. he saw them, and because he knew they were true as' entered. He was permitted to look at the paper and state them as there entered. His testimony was thus confined to what he swore he knew to be true. McCormick v. R. R. Co., 49 N. Y., 315.

The evidence to the effect that the defendant replaced the worn out stone by a better one was carefully restricted both by counsel and the court to the question at issue upon the trial, but not raised here, whether the defendant had control over the sidewalk. It was competent upon that question. Morrell v. Peck, 88 N. Y., 398.

All the defendant could ask was an instruction that it was not evidence of negligence, and that was given.

Judgment affirmed, with costs.

Fish and Parker, JJ., concur.  