
    Eliza Merwin, as Administratrix of Samuel Merwin, Deceased, Resp’t, v. The Manhattan Railway Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    1. Negligence—Railroad—Protection for platform of cars.
    It appeared that the deceased got on hoard of a train of the defendant company, the cars including the platform of which were terribly crowded. He stood with many others on the rear platform of one of the cars and in consequence of the pressure made by passengers stepped back from the place where he was standing near the edge of the platform, and falling between the platforms was killed. There was nothing across the opening through which the deceased fell, nor in any way extending from the railing of one platform to tire railing of the other. Held, that the defendant ought to have foreseen that such an accident might happen. That the omission to provide suitable safeguards against its occurrence was actionable negligence. That the fact that such an accident had not happened previously was not conclusive evidence of lack of negligence on the part of the defendant.
    3, Same—Not contributory negligence to board crowded train.
    
      Held, that as a matter of law it was not contributory negligence for deceased to board the train under the circumstances.
    3 Same—Duty of railroad to passenger to be transported on platform: of its cars.
    The defendant by taking deceased upon the train for the purpose of transporting him as a passenger upon the platform was bound to exercise a high degree of care to make the platform safe and secure for occupation, and deceased was entitled to assume that it would do so.
    Appeal from judgment entered upon the verdict of a jury at circuit and from order denying motion for a new trial.
    
      Edward S. Rapallo, for app’lt; Thomas P. Wickes, for resp’t.
   Bartlett, J.

The plaintiff’s intestate was killed by falling between the cars of a train on the Third avenue elevated railroad between six and seven o’clock p. m. on September 18, 1884. He got on board the train, which was going up town, at the Forty-second street station. According to the testimony for the plaintiff, the cars, including the platforms, were terribly crowded, so that it was impossible for the plaintiff’s intestate and his companion to get on. There were four cars on the train, and they stood on the rear platform of either the first or the second car. Upon leaving Sixty-seventh street there were from twelve to fifteen people on each platform, and the aisle of the car was filled with people standing. As the train approached Seventy-sixth street, where the deceased intended to alight, passengers began to come out on the platform preparatory to getting off. The deceased was standing near the edge, and in consequence of the pressure made by the outcoming passengers, stepped back, falling between the platforms. He was instantly killed. There is some evidence that just before the fall the cars <l jogged together,” and that the jolt thus produced had some influence in causing him to lose his foothold. There was nothing across the opening through which the deceased fell, nor in any way extending from the railing of one platform to the railing of the other. The cars were provided with small chains to hook across the passageway between the stanchions on the platform; but they seem originally to have been designed for use in this manner only upon the front platform of the first car and the rear platform of the last car. Occasionally, however, these chains had been hooked from the stanchions of one platform across to the stanchions on the platform of the next car, so as to be on both sides of a passenger stepping from one platform to the other, and thus lessen to some extent the danger of falling into the open space between the cars.

Under the charge of the trial judge, and his rulings upon the various requests to charge, the jury could find that the defendant was negligent only on the ground that it omitted to provide adequate safeguards against the danger of falling from the platform; or, more particularly, that it was negligent in omitting to fasten the chains between the stanchions from car to car. The answer of the defendant to this charge of negligence is, that it had no reason whatever to anticiSate the danger of such an accident as happened in this case. To casualty of the kind had ever before occurred. The chains were originally intended to be hooked across the ends of the train only. To hook them across any platform except the front platform of the first, and the rear platform of the last car, would be to prevent access from one car to another; and although they had sometimes, as a matter of convenience, been hooked from platform to platform, it was not for any purpose of protection, but merely as a convenient method of putting the chains out of the way.

From what has been said, it will be seen that the main question in the case so far as the alleged negligence of the defendant is concerned, is whether the defendant ought to have foreseen that such an accident might happen. If it ought, the omission to provide suitable safeguards against its occurrence was actionable negligence. (Loftus v. Union Ferry Co., 84 N. Y., 455; Dougan v. Champlain Trans. Co. 56 N. Y., 1.) In the latter case, the sole proof of negligence was an omission to inclose a space between the railing and the deck of the defendant’s boat, so as to preclude the possibility of slipping under it; and the court said: “ Had there been any proof tending to show that such danger would be apprehended by a reasonably prudent person, the evidence should have been submitted to the jury.” At the time of this accident, the evevated railroad, on Third avenue, had been in operation a little over six years, and the proof showed that its trains were then carrying about 300,000 passengers a day.

Up to that time no accident of a similar character to that by which the plaintiff’s intestate lost his life had ever occurred, and hence the learned counsel for the appellant argues the railroad company had no reason to anticipate such a casualty, or provide means to prevent it. But is this view correct? Is it not obvious to any railroad manager that passengers riding upon the car platform in a train drawn by steam power, are peculiarly exposed to various perils, and particularly to the danger of being throw from the train? The liability to accident when riding on platfroms was recognized by the legislature in the general railroad act (Laws 1850, chap. 140, § 46), in that provision which gives immunity to the company in case of injury to a passenger while riding on a platform, in violation of the printed regulations forbidding him to do so. It seems to me that the accident which'befell the plaintiff’s intestate was one, which might well have been foreseen, and one, indeed, almost certain to occur if the defendant undertook to run its trains in the crowded condition shown by the evidence in this case. The fact that 300,000 passengers were carried daily by the company, and that no accident of this kind had happened before, is by no means conclusive on this question of negligence, inasmuch as the record fails to show that the trains, which carried this large number of people, were similarly crowded. In order to make such evidence of much weight as tending to show that the defendant had no reason to apprehend the casualty in question, it should appear that the conditions under which others had been carried safely for so many years, were the same as those which existed when the plaintiff’s intestate was injured.

But it is urged that a verdict should have been directed for the defendant, on the ground that the plaintiff was guilty of contributory negligence in getting on a crowded car when it was perfectly obvious that he would have to stand on the edge of the platform. As a matter of law, however, it was not contibutory negligence for him to board the train under the circuznstances disclosed by the record. Werle v. Long Island Railroad Company, 98 N. Y., 650.

Although the platform is described as having been terribly crowded, it does not appear that the deceased perceived that he would have to stand on the edge of the platform, or that he did in fact stand on the edge of the platform throughout the journey.

According to the witness Ooogan, who was also a passenger on the platform, the deceased first stood at a point which, as shown in a diagram in the appeal book, must have been very near the middle of the platform. Even if it was obvious to the deceased that he would not be able at once to find a place inside the car, the defendant by taking him upon the train for the purpose of transporting him as a, passenger upon the platform, was bound to exercise a high degree of care to make the platform safe and secure for his occupation, and he was entitled to assume that it would do so. His knowledge of the construction of the platform, and the consequent insecurity could hardly have been as full or accurate as tha.t of the defendant’s officers and agents. Whether he was guilty of contributory negligence in anything he did thereon, was a question for the jury.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., and Macomber, J., concur.  