Dittmar v. International Railway Co. , 173 A.D. 995 ( 1916 )

Per Curiam:

As to the duty of the defendant the learned trial judge instructed the jury as follows: “ Of course, it is the duty of the defendant to exercise great care for the safety of its passengers, both in getting on and getting off the ear, and it is its duty to exercise care to see that its steps and platforms are so free from ice as not to endanger those who may have occasion to use them, and the question of fact here is whether there was or was not such ice upon this step.” At the close of the charge the counsel for the defendant took the exception and made the request stated in the following: “ I wish to except to that portion of your Honor’s charge in which your Honor charged the jury that the defendant was bound to use great care for the safety of passengers, and I ask your Honor to charge the jury in that connection that the railway company was bound to use reasonable care for the safety of passengers.” The court refused the request, to which defendant excepted. Held, that the court instructed the jury that a greater degree of care was incumbent on the defendant than the circumstances of the case justified. All concurred; Lambert and Merrell, JJ., concurring in reversal and voting for the dismissal of the complaint upon the ground that it affirmatively appears that the plaintiff did not slip upon the icy car step, but upon the street after she had alighted. Judgment and order reversed and new trial granted, with costs to the appellant to abide the event.