Kelly v. Manhattan Railway Co.

Peckham, J. The rule in relation to the hability of railroad corporations for injuries sustained by passengers under such 1 circumstances as this case develops, differs from that which obtains in the case of an injury to a passenger while he is being carried over the road of the corporation and where the injury occurs from a defect in the road-bed, or machinery or in the construction of the pars, or where it results from a defect in any of the appliances such as would be likely to occasion great danger and loss of life to those traveling on the road. The rule in the latter case requires from the carrier of passengers the exercise of the utmost care, so far as human skill and foresight can go, for the reason that a neglect of duty in such a case is likely to result in great bodily harm and sometimes death to those who are compelled to use that means of conveyance. As the result of the least negligence may be of so fatal a nature, the duty of vigilance, on the part of the carrier, requires the exercise of that amount of care and skill in order to prevent accident. (Hegeman v. Western R. R. Co., 13 N. Y. 9.) But in the approaches to the cars, such as platforms, halls, stairways and the like, a less degree of care is required, and for the reason that the consequences of a neglect of the highest skill and care which human foresight can1 attain to are naturally of a much less serious nature. The rule in such cases is that the carrier is bound simply to exercise ordinary care in view of the dangers to be apprehended. We have lately had cases of this character before us, and in the case of Lafflin v. B. & S. W. R. R. Co. (106 N. Y. 136), where a passenger was injured in stepping from a ear to the platform, because, as he alleged, the platform was too far from the steps of the car, this rule was announced (opinion per Eajjl, J.): “The company.was not bound so to construct this platform as to make accidents to passengers using' the same, impossible, or to use the highest degree of diligence to make it safe, convenient and useful. It was bound simply *451 to exercise ordinary care, in view of the dangers attending its use, to make it reasonably adequate for the purpose to which it was devoted.” In Morris v. New York Central and Hudson River Rail road Company (106 N. Y. 678) a passenger was injured by the falling upon him of a clothes-wringer placed in a rack over his seat by another passenger; and the court held the measure of care required of a carrier of passengers in such a case was not the highest care which human vigilance could give, but that the company was only to be held to reasonable care, to be measured by the circumstances surrounding the case. In Palmer v. Pennsylvania Company (111 N. Y. 488) it was held that the rule requiring the utmost possible care in discovering defects in the trucks and running machinery of a road did not apply where a passenger was injured by slipping on the platform of a ear which had become slippery on its passage during the night because of a storm which was raging during that time. It was said, in that case, by Huger, Oh. J., that “ the trial court was not justified in applying to this case the rule pertaining to the construction and maintenance of tracks and running machinery by railroad corporations, which holds them to the use of the utmost possible care in discovering and. remedying defects therein. That rule is applicable to such appliances of a railroad as would be likely to occasion great danger and loss of life to the traveling public, if defects existed therein on account of the velocity with which cars are moved, and the destructive and irresistible force which accompanies such motion.” And, again, the learned judge said: “ The presence of snow or ice upon exposed places on moving cars is an accident of the hour, and no ordinary diligence could, during the prevalence of a storm, wholly remove its effects from the places exposed to its action, so as to prevent accidents to heedless and inattentive travelers. A passenger on a railroad tram has no right to assume that the effects of a continuous storm of snow, sleet, rain or hail will be immediately and effectually removed from the exposed platform of the car while making its passage between stations or the termini of its route, and it *452 would be an obligation beyond a reasonable expectation of performance to require a railroad corporation to do so.” (See, also, Unger v. Forty-second St. R. R. Co., 51 N. Y. 497.) In applying this rule of reduced liability to the case in hand we are unable to see, from the evidence on the part of the plaintiff, that the defendant was guilty of such negligence as would permit the recovery of a judgment for the injury sustained by the deceased. The night was cold and stormy. Snow fell mixed with sleet, and the sidewalks were rendered very slippery. This the deceased knew, for he walked upon them from the saloon to the Thirty-fourth street station. The storm commenced about midnight and continued until nearly four o’clock in the morning, and this accident happened between half past five and six o’clock. The defendant had furnished a covered stairway with hand-rails and pieces of rubber on each step to prevent slipping, and the failure to throw ashes or sawdust or something of that character upon the steps during the storm cannot be regarded as negligence, because the continuance of the storm would soon render the steps as slippery as before; and it seems to us that culpable negligence cannot be predicated upon the failure to clean off the steps between the time the storm ceased, which was between three and four o’clock in the morning, and the time when the accident happened. So brief a period as that, at such a time in the night, cannot, we think, be regarded as any evidence of a lack of that reasonable care which the defendant was bound to exercise. Great reliance was placed on the argument upon the case of Weston v. New York Elevated Railroad Company (73 N. Y. 595), but we think that case does not control this one. In the Weston Case the plaintiff sustained injury • by falling upon an uncovered platform between a waiting-room and the defendant’s cars, and over which platform it was necessary to pass to reach the cars, and which platform the defendant had negligently suffered to become covered with snow and ice, rendering passage over it insecure and dangerous. The evidence showed that during the day, and before the accident *453 happened, it had snowed, and the snow had been but partially removed from the platform. The plaintiff, while proceeding with caution, lost his footing, fell and was injured. The evidence also showed that other passengers, at about the same time, slipped upon the platform. There was no difficulty in making the platform safe, and the accident happened in the day-time. A verdict for the plaintiff was upheld in the court below and sustained in this court. The court had charged that the defendant was bound to be on the alert during cold weather and to see whether there was ice upon the platform, and to make it safe by putting sand or ashes upon it, or in some other way. This court held that that was not too stringent a rule. This case, we think, materially differs from that one. Here there was a continuous storm of sleet and snow from about twelve to four o’clock, and within two or three hours after the storm ceased, ando in the very early morning, the accident occurred. The staircase was covered and the roof projected a foot on each side of it. There were rubber tips on each step, and a hand-rail on either side to aid passengers in going up and down the stairs. Under such circumstances the duty, even of alertness on the part of the defendant, was not omitted by a failure to render the stairs less slippery at such a time in the night and within the period named. We think the motion for a nonsuit should have been granted. Again, the learned judge in his charge to the jury fell into error when he stated the obligation of the defendant upon the facts of this case. Under the cases above cited it was error to instruct the jury that it was the legal duty of the defendant to use all human care, caution and skill to make the ingress and egress to the defendant’s station safe. This statement of the law was not in any manner explained or taken back. He also stated- that the defendant “ was required to use all the skill, all the diligence and all the care that the most cautious human being would use if he were looking after the protection of his own life and health.” Upon exception being taken to that remark he altered it by saying “ a very cautious ” instead of “ the most cautious ” human being. The charge in both *454 forms was erroneous under the authorities already cited. We think he also erred in his charge with reference to the condition of the stairs when he said: “ If you come to the conclusion that they were slippery at that time, and that means might have heen taken to prevent their being so, and that by reason of their slipperiness the plaintiff fell as has been stated, then so far as this issue goes the jury would be justified in finding for the plaintiff.” This charge practically made the company liable for the slipperiness of the steps, if by the exercise of the greatest care and skill which human foresight could think of such condition could have been prevented. Of course such condition could have been prevented by stationing men at each stairway constantly engaged sweeping and cleaning the steps;‘or if one man were not enough to do it, then, under this ruling, others should have been employed. And, under this charge, if the storm were so severe as to .require it one man on each step should have been employed. • Ho such rigorous rule exists in our judgment. These views lead to a reversal óf the judgment, and to the granting of a new trial, with costs to abide the event. All concur,- except Danforts, J., not voting. Judgment reversed.