Catterson v. Brooklyn Heights Railroad

Burr, J.: "Upon the trial of this action, after a jury had been impaneled, but before any evidence bad been introduced by -the plaintiff, the court dismissed the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. Upon such a motion not only must the complaint be liberally construed (Code Civ. Proc. § 519), but such construction, so far as matters of form aré concerned,- must be in favor of and not against the pleading. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451; Rochester R. Co. v. Robinson, 133 id. 242; Howe v. Hagan, 110 App. Div. 392; Naylor v. N. Y. C. & H. R. R. R. Co., 119 id. 24.) In the Coatsworth Case (supra) the court said : “Under the more recent authorities pleadings are not to be construed strictly against the pleader, but averments which sufficiently point out the nature bf the pleader’s claims are sufficient if under them he would be entitled to [401] give the necessary evidence to establish his cause of action.” In the Howe Case (supra) and in the Naylor Case (supra) this court has followed tin’s rule, making use of the same language. Under the complaint in this action the plaintiff could prove that the defendant was a street railroad corporation operating its cars through Graham avenue, in the borough of Brooklyn; that on the 7th day of August, 1906, the pavement on Graham’avenue within two feet of the tracks of the railroad company was being repaired; that some of the paving blocks had been taken out, leaving large holes in the pavement; that on the date mentioned plaintiff’s wife, having an infant child in her care, was' a passenger on a car of the defendant, which came to a full stop at the corner of Graham and Driggs avenues; that plaintiff’s wife alighted, and while in the act of taking her infant child from the car, without any fault on her part, her foot slipped into one of- the above-mentioned large holes in the pavement, causing her to fall, and that she thereby sustained injuries. He could also prove that the defendant knew that the pavement was being repaired, and the condition of the street in consequence thereof, and omitted to give the alighting passenger any notice or warning that such pavement was being repaired, and that there were large holes in such pavement as a consequence thereof. Upon such proof being made it would be for the jury to say whether the defendant exercised due care to give the plaintiff’s wife a reasonably safe place to alighh This it was the duty of the defendant to do, or to warn her of existing danger known to it. (Wells v. Steinway R. Co., 18 App. Div. 180; Wolf v. Third Avenue R. R. Co., 67 id. 605; Flack v. Nassau Electric R. R. Co., 41 id. 399; Onderdonk v. New York & Sea Beach R. Co., 74 Hun, 42; West Chicago St. R. Co. v. Cahill, 64 Ill. App. 539; Bass v. Concord St. R. Co., 70 N. H. 170.) The duties and obligations of a common carrier to exercise reasonable care to secure the safety of the plaintiff’s wife did not terminate at the moment when she had alighted from the car, but continued until she had a reasonable opportunity to take her infant child from the hands of a fellow-passenger who was handing it to her. (McKone v. Mich. Central R. R. Co., 51 Mich. 601; Jeffersonville, M. & I. R. R. Co. v. Riley, 39 Ind. 568; Tobin v. Portland, S. & P. R. R. Co., 59 Maine, 183.) It was not neoes [402] sary to allege in the complaint the exact size of the hole nor the exact distance from. the track. These were evidentiary facts. It was enough to allege that it was less than two feet from the track, and that it was sufficiently large to cause the passenger to fall when, without fault on her part, she stepped into it. It was not necessary to allege that it was dangerous; that could be inferred from the fact of the fall as a consequence of stepping into it. The allegations of the complaint respecting the conduct of the defendant in bringing the car to a stop in close proximity to this large hole in the pavement, and in omitting to warn the plaintiffs wife of its existence, is followed by the allegation that the “ accident was caused by the negligence of the defendant.” This is equivalent to saying that the act and the omission above referred to was a negligent áct and omission. The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. Hirschberg, P. J., Rich and Miller, JJ., concurred; Gaynor, J., read for affirmance. ,