Williams v. New York Rapid Transit Corp. ( 1936 )

The facts shown by this record raise an issue of fact for the jury as to whether the defendant was negligent. It is uncontroverted that the building of the newsstand crowded this platform, comparatively narrow at best, and left a space of only six feet as a passageway for those boarding and leaving the trains. In this narrow passageway fifteen to twenty-five passengers were standing and waiting. True it is that the entire platform could accommodate one hundred or more persons. True it may be also that the building of the newsstand did not in itself constitute negligence. But the congregation of fifteen to twenty-five people in a passageway six feet wide might well result in an obstruction dangerous to any one attempting to board or leave the defendant's trains. The record contains evidence that within this passageway a crowded condition existed. Under such circumstances it was for the jury to say whether it was negligent for the guard on duty to make no attempt to eliminate the dangerous condition by clearing the obstructed passageway, even if it involved more exposure to the weather for some of the waiting passengers. (Bacon v. Hudson Manhattan R.R. Co., 154 App. Div. 742.)

There is no evidence that the unknown who pushed Proschold into the plaintiff was in any way awkward, and even if there were such proof the jury might well find that it was the dangerous condition of the passageway which actually caused or contributed to the injury of the plaintiff.

The argument is made that other passengers had boarded the trains by using the passageway and had not been injured. The mere fact that others were more fortunate or that the plaintiff was the first to suffer as the result of the crowded passageway should not bar her recovery. In this connection it is interesting to note, however, that the record discloses that ten similar accidents had occurred on this very platform within a period of seven months immediately preceding the plaintiff's injury.

The judgment of the Appellate Division should be affirmed.

CRANE, Ch. J., LEHMAN, HUBBS, CROUCH and LOUGHRAN, JJ., concur with O'BRIEN, J.; FINCH, J., dissents in opinion.

Judgment accordingly.