Roth v. City of New York

In an action to recover damages for personal injuries sustained by plaintiff, a passenger who had fallen from a subway station platform to the tracks, where he was struck by defendant’s train, the jury awarded plaintiff $20,000. Judgment reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. The station was 600 feet long. Plaintiff testified that the accident happened 100 feet or less from the easterly end of the station. The defendant’s witnesses testified it happened 120 to 150 feet from the westerly end of the station. The finding implicit in the jury’s verdict that the accident happened at the place where plaintiff testified it occurred is against the weight of the evidence. As there is to be a new trial, we point out that the court erred in charging that plaintiff could not recover unless the accident happened “ as and where substantially the plaintiff claims it happened.” The evidence also presented a question of fact to be determined by the jury on the defendant’s version as to how and where the accident happened, and the jury should have been permitted to decide whether or not the defendant was negligent, to plaintiff’s damage. (Imbriale v. Skidmore, 252 App. Div. 884; Tumulty v. New York, New Raven & R. R. R. Co., 224 App. Div. 131; Burd, v. Bleischer, 208 App. Div. 499, 501; Uralsky v. Gribbon, 242 App. Div. 533; Newman V. Pennsylvania R. R. Co., 33 App. Div. 171; Barker v. Paulson, 116 N. Y. 660.) Carswell, Acting P. J., Johnston, Adel, Lewis and Aldrich, JJ., concur.