Opinion
October, 1904.
Sanders Shanks, for the appellant.
I.R. Oeland [ George D. Yeomans with him on the brief], for the respondent.
While riding as a passenger on one of the defendant's elevated trains, the plaintiff was injured by being kicked by one of the passengers who entered the car through the window near which the plaintiff was sitting. This passenger in his effort in that manner to gain access to the car, struck the plaintiff on the nose with his heel, inflicting the injuries to recover for which this action was brought.
The claim of negligence was that the defendant permitted and allowed passengers to enter trains at this station through the windows. Evidence appears in the record tending to show that the practice had been permitted by the defendant for a considerable period of time. At the close of the plaintiff's case the defendant moved for a nonsuit, which was granted, and the plaintiff appealed.
In Lehr v. Steinway Hunters Point R.R. Co. ( 118 N.Y. 556, 561) it is said that "the exposure of a passenger to danger which the exercise of a reasonable foresight would have anticipated and due care avoided, is negligence on the part of a carrier."
In Dawson v. New York Brooklyn Bridge ( 31 App. Div. 537, 539) Mr. Justice BARTLETT deduces the rule in this language: "Common carriers, engaged in the transportation of large numbers of persons from stations at which such carriers control the admission of passengers to the vehicles of conveyance, are bound to exercise reasonable care, so to regulate the movements and disposition of those whom they thus undertake to transport, as to preserve the safety of all;" and cites the following cases as establishing that doctrine: Graham v. Manhattan R. Co. ( 149 N.Y. 336); Tonkins v. N.Y. Ferry Co. (47 Hun, 562; affd., 113 N.Y. 653); Merwin v. Manhattan Railway Co. (48 Hun, 608; affd., 113 N.Y. 659); McGearty v. Manhattan Railway Co. ( 15 App. Div. 2).
In the Dawson case the defendants exercised complete control over the avenues of access to the train which plaintiff entered, and it was within the defendants' power to limit the number of passengers who should be upon the station platform. Owing to the excessive crowding upon the car platform the plaintiff there was forced over the opening between the bumpers of the two cars and partly fell therein, his foot being crushed as the train started and before he could extricate it. It was there held that the question was presented for the jury whether, by the exercise of a reasonable degree of foresight, the defendants could not have anticipated the danger likely to arise from such overcrowding, and have exercised such care as would have prevented the plaintiff's injuries.
In the case at bar the defendant exercised complete and exclusive control over the platform from which the passenger, who inflicted the injury complained of, obtained access to the train, and no reason is suggested why the defendant could not have compelled its passengers, who had congregated upon that platform with the purpose of taking passage upon the train in which plaintiff sat, to enter the cars through the doors. We think that it can hardly be denied that a reasonable degree of foresight on the defendant's part would have indicated to it the likelihood of injuries to passengers arising from such an awkward and difficult manner of ingress, and that the record presented for the jury a question of fact whether it should not have anticipated the danger by the exercise of reasonable foresight and have exercised such care for the safety of the passengers already in the train as to prevent others from crowding in upon them in such an unusual manner. (See, also, Dittmar v. Brooklyn Heights R.R. Co., 91 App. Div. 378; Viemeister v. Brooklyn Heights R.R. Co., Id. 510; Cattano v. Metropolitan Street R. Co., 173 N.Y. 565; Graham v. Manhattan R. Co., 149 id. 336.)
These views lead to the conclusion that the judgment should be reversed and a new trial granted.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.