Opinion
June, 1915.
Henry L. Slobodin, for appellant.
James L. Quackenbush (B.H. Ames, of counsel), for respondent.
Plaintiff testified that while in the act of stepping from the platform of an elevated railroad station and One Hundred and Forty-ninth street and Third avenue onto the platform of the car, after the gate of the train had been opened, "the train joggled and I fell down and my foot went between the platform of the train and the platform of the station." This statement, with its elaboration, seems to have made out a prima facie case of negligence on the part of defendant, and there was no reason why the complaint should have been dismissed.
Respondent's contention that the opening of the gate was not a circumstance to be submitted to the jury, as an invitation to plaintiff to board the train, is not supported by the case cited by it, namely, Clark v. Metropolitan St. R. Co., 68 A.D. 49. That case did not involve the opening of a gate at all, and the elaborate discussion by the court of the particular facts there at issue is sufficient to show that no possible analogy to the case at bar can be drawn therefrom.
The respondent also contends that "The duty of defendant to give the plaintiff reasonable opportunity to board the car did not arise until the car had been brought to a stop," citing Schwartz v. New York City R. Co., 55 Misc. 214, but a reference to that case shows that it involved only the language employed in the charge and has no bearing whatsoever on the case at bar.
The judgment is, therefore, reversed and a new trial granted, with costs to appellant to abide the event.
GUY and PAGE, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.