Opinion
December 21, 1911.
Clarence L. Barber [ Theodore Connoly and Archibald R. Watson with him on the brief], for the appellant.
Adam K. Stricker, for the respondent.
On May 22, 1910, defendant operated a steam ferry between St. George, S.I., and the borough of Manhattan. On that day plaintiff, with three other ladies, were occupants of a coach which was driven upon one of the ferryboats while lying in the slip at St. George. The team gangways were on the main deck and, for a portion of the distance, on either side of an inclosure in the center of the boat occupied by the engine, furnaces and boilers. Between this inclosure and the stern of the boat, and midway between the two gangways, was a coal hole or chute, through which the necessary fuel for the furnaces was dumped into the bins. This chute was a little more than four feet long and a little more than two and a half feet wide. It was not flush with the deck. Around it there was a wheelguard one foot wide and four and a half inches high. Between that and the opening there was a steel combing about four inches higher than the wheelguard. This coal hole was sixty-eight and one-half feet from the stern of the boat. The main deck for a part of the intervening distance was covered by the overhang of the saloon deck above. The terminus of a line drawn perpendicularly from the extreme edge of this overhang to the main deck would be a point forty-three feet and ten inches from the said coal hole. There were canvas windshields at the bow and stern of the boat. While those at the bow were closed they were nearly two hundred feet distant from the chute. Those at the stern were not drawn. Just before the coach in which plaintiff was riding was driven upon the boat the cover of the coal chute was raised to permit the dumping of the coal into the bins, and had been left open. When the coach had stopped in the gangway, plaintiff and her companions alighted to go to the ladies' cabin, which was on the opposite side of the said gangway from the chute. It does not clearly appear from plaintiff's testimony from which side of the coach she alighted. It would seem probable that it was upon the left-hand side, as if she had alighted upon the right-hand side she must have walked away from instead of toward the cabin in order to reach the opening. Plaintiff is unable to tell how far distant from the coal chute the rear wheel of her coach was when it stopped. She says that she took one or two steps, not more. One of the witnesses called by her estimates the distance to have been three feet. A witness called for defendant estimates the distance to have been considerably more. After alighting from the carriage plaintiff walked along and stepped into the opening and fell, sustaining injuries for which a jury, by its verdict, have said that defendant was liable.
We think that the judgment in this case must be reversed upon the ground that plaintiff has not shown herself to be free from negligence contributing to the injury. It affirmatively appears from her own testimony that before she got out of the carriage she did not look either to the right or to the left; that she did not look in front of her to see if there was anything there. There was no evidence that anything existed which prevented her from seeing this open hole if she had looked. It is true that one of her witnesses testified that the place was "dark." Darkness is a relative term, and the word "dark" may have little probative force unless the extent of the darkness is indicated. The accident happened at about half-past four o'clock in the afternoon of the twenty-second of May, on a clear day, when the sun was shining. Although there is evidence of the extent of the overhang of the upper deck, there is no evidence of its height above the main deck. It certainly must have been sufficiently high to permit the passage under it of large trucks and vehicles, and it could not, under the admitted circumstances of the case, have cast any shadow on the opening sufficient to obscure it. The point where plaintiff alighted was not in that portion of the gangway between the cabin and the engine room, which may have been somewhat darker. The only witness called by her as to the accident testified that he was in the coach behind the one in which she was riding, yet he saw the coal hole, saw that the cover was up, saw the top of the coal in the chute, saw plaintiff step out of the carriage, saw the wheelguard (he calls it a base) four or five inches above the deck, saw plaintiff step upon this and then into the opening. If he could see all these things there was no reason why plaintiff could not have done so if she had been in the least attentive. In order to get her foot into this opening she must have raised it more than four inches to the top of the wheelguard, passed it over this guard, one foot in width, and raised it again four inches to clear the steel combing on the side of the chute. That she could have done this unconsciously can only be explained upon the ground that, as she herself testified, she paid "no attention to it." There is no evidence that there was anything unusual in the location of the coal chute. Necessarily there must be some appliances for supplying a boat with fuel. We think that the court may take judicial notice of the fact that this chute was located in the place where such appliances are usually to be found on ferryboats. While it was not unlawful for plaintiff to alight from the carriage and walk over the deck, yet this deck and the place where the coal hole was situated were not primarily intended for that purpose, and it was incumbent upon plaintiff to exercise a greater degree of care than if she had been walking upon the sidewalk of a city street or the platform of a railroad station. Transportation companies are not liable for risks arising from heedlessness on the part of the passenger. ( Piper v. New York Central H.R.R.R. Co., 156 N.Y. 224.) If the place where plaintiff alighted was, in fact, dark, it was incumbent upon her to use greater care. ( Brugher v. Buchtenkirch, 167 N.Y. 153; Dailey v. Distler, 115 App. Div. 102; Lather v. Bammann, 122 id. 13.) It is quite clear that she exercised none at all.
We have been recently reminded that the rule which requires affirmative proof of the absence of contributory negligence on the part of a plaintiff is not to be ignored in actions to recover damages for personal injuries. ( Mastin v. City of New York, 201 N.Y. 81.)
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
JENKS, P.J., and CARR, J., concurred; HIRSCHBERG and RICH, JJ., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.