Opinion
June 27, 1939.
In an action by a wife to recover damages for injuries sustained by reason of alleged negligence of defendant, and by her husband for loss of services and expenses, judgment reversed on the law, with costs, and complaint dismissed, with costs. The space of nine inches and elevation of five inches between the platform and car entrance, at a curve of the elevated tracks, was not claimed to be a structural defect and did not constitute negligence in and of itself. ( Ryan v. M.R. Co., 121 N.Y. 126; Woolsey v. Brooklyn Heights Railroad Co., 123 App. Div. 631.) The lights of the platform were lighted and were adequate in number and power. The accident occurred at one o'clock in the morning and there is no proof of crowding. As plaintiffs' proof shows, the wife simply did not raise her foot high enough. Reasonable vigilance is required of passengers and, under all of the circumstances, there is no showing of actionable negligence. ( Smith v. Brooklyn Heights Railroad Co., 129 App. Div. 635.) Hagarty, Carswell, Taylor and Close, JJ., concur; Lazansky, P.J., dissents and votes to affirm on the ground that the physical facts of the distance of the car from and above the platform, and the other surrounding conditions, warranted the jury in finding defendant chargeable with negligence.