Olopp v. Interborough Rapid Transit Co.

Guy, J.

This appeal is taken by defendant from a judgment upon the verdict of a jury in an action for damages for personal injuries. The plaintiff testified that, in alighting from one of defendant’s cars on which he was a passenger, he slipped upon a coating of ice that had formed on the edge of the platform of the station. At this station the platform is elevated. The station platform was closed on three sides and roofed over at the place where the plaintiff alighted. The principal question at issue was whether the defendant was negligent in allowing the ice to form and continue to exist upon the platform. The evidence shows it had been raining and sleeting during the day and had hailed during the evening, and that this rainy and sleety condition continued until about the time of the accident. There was evidence that employees of the defendant scattered sand and ashes on the platform during the course of the evening, but that the prevailing wind blew them away. In submitting the case to the jury the court charged “ it was the duty of the company within a reasonable time to make that platform safe for its passengers,” to which charge the defendant excepted. The court also charged and defendant excepted to the charge, “ that if the testimony of plaintiff’s witnesses was true that the storm had practically abated and the company did not do something to remedy the conditions there or protect its passengers by throwing something on the platform whereby it would make the platform safe for people to alight from the trains ” then, of course, they were careless or negligent • in not properly protecting the people who were their passengers. The practical effect of this charge was that the defendant would be liable for the slippery condition of the platform unless they did something within a reasonable time to remedy the condition, “ by throwing something on the platform whereby it would make the platform safe for people to alight from the trains.” This was reversible error. The question of negligence should have been left to the jury under a proper charge that defendant was bound to exercise reasonable care, such care as an ordinarily prudent person would use under all the circumstances of the case to render the platform reasonably safe for its passengers. A railroad company is not an insurer of the safety of its passengers; and, while it is held to a very high degree of care in properly equipping its system for operation, it is only required to exercise ordinary care in the operation of the road, “ in view of the dangers attending its use, to make it reasonably adequate for the purpose to which it'was devoted.” See Lafflin v. Buffalo & S. W. R. Co., 106 N. Y. 136; Stierle v. Union R. Co., 156 id. 72; Rusk v. Manhattan R. Co., 46 App. Div. 103; Dinkelspiel v. Interborough R. T. Co., 113 R. Y. Supp. 187; Johnston v. N. Y. City Ry. Co., 120 App. Div. 456; O’Neil v. New York & Q. C. R. Co., 121 id. 487.

Applying the rule laid down in Davenport v. Prentiss, 127 App. Div. 457, quoting from Greene v. White, 37 N. Y. 405, that, “ if it is possible that the defendant was injured by this error, the verdict must be set aside,” the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Platzek and Gavegan, JJ., concur.

Judgment reversed.