Opinion
February, 1906.
David Paine, for appellant.
Charles A. Gardiner, for respondent.
The plaintiff brought this action for damages resulting from injuries, alleged to have been sustained by falling through a space of the width of about a foot between the car and station platforms, while alighting as a passenger from one of the cars of defendant at the subway station at Fourteenth street in this city.
The accident happened during the "rush hours" and while plaintiff was surrounded by a considerable number of passengers who were pushing their way from the car to the station. Plaintiff testified that he had alighted at this station about three or four times before, was not aware of the existence of the space or opening of the width of a foot and that no warning of any danger from the opening was given by defendant. The complaint was dismissed after plaintiff rested.
It seems to me that, upon the facts established, this was error. There was no evidence of a negligent construction (Ryan v. Manhattan R. Co., 121 N.Y. 126); but, considering that the plaintiff testified that he had no knowledge of the existence of such an opening, that the accident happened while many passengers were crowding upon and around him and that no warning was given to passengers as to the peculiar danger that was lurking at the place of alighting, it was the duty of the court to submit to the jury the question of defendant's negligence in failing to guard this space, or warn passengers of the danger incident to its existence, and the question of plaintiff's contributory negligence. Langin v. New York Brooklyn Bridge, 10 A.D. 529.
The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
SCOTT and GIEGERICH, JJ., concur.
Judgment reversed and a new trial ordered, with costs to appellant to abide event.