Dittmar
v.
Brooklyn Heights R.R. Co.

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentMar 1, 1904
91 App. Div. 378 (N.Y. App. Div. 1904)
91 App. Div. 37886 N.Y.S. 878

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March, 1904.

M. Nussbaum, for the appellant.

Eugene V. Brewster, for the respondent.


There are no exceptions presented by the record excepting those taken to the refusal of the court to dismiss the complaint at the close of the plaintiff's case and at the close of the entire evidence, and to the refusal of the court to direct a verdict in favor of the defendant. There was evidence requiring a submission to the jury of the question of the defendant's negligence, and no claim being made of negligence on the plaintiff's part, these exceptions present no ground of error.

The plaintiff was employed at the time of the accident complained of, December 17, 1901, in a department store in the borough of Manhattan and she lived in the borough of Brooklyn. On that day she started to cross the Brooklyn Bridge at seven-forty-five A.M., in accordance with her custom, and on paying her fare and ascending to the platform of the bridge was obliged to wait some fifteen or twenty minutes for one of the defendant's trains. There were few people on the platform when she first reached it, but before the train arrived a crowd of passengers had collected so dense that there was no room to move, to escape, or even to turn around. She chanced to stand within a foot of the edge of the platform, and when the train finally came was pushed by the crowd with considerable force against the side of the car where she was held for a moment or two and was then thrown by the crowd violently into the car, sustaining the personal injuries which form the basis of her recovery. There is practically no dispute as to the facts. It was admitted on the argument and is indeed matter of common knowledge that passengers are required to pay their fare before being admitted to the platform. A witness for the defendant testified that the defendant had "means of keeping people from going upon the platform when there is no way of carrying them off the platform. They put a rope across the stairway or chain, enough to keep them from going up." It was also testified to in defendant's behalf that "that is a place where they average every ten minutes thousands of passengers. And if one train is delayed for any reason, the platform would be filled to overflowing at any time."

With the evidence of the plaintiff as to the cause and manner of the accident practically undisputed, the trial court could not lawfully have subjected her to a nonsuit. The question of the defendant's negligence, under the circumstances, was clearly one of fact to be resolved by the jury. The standard of duty applicable to the occasion which necessarily controls the question of the defendant's liability was succinctly laid down by Mr. Justice BARTLETT of this court in Dawson v. New York Brooklyn Bridge ( 31 App. Div. 537, at p. 539) as follows: "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. This rule is deducible from the general principles governing the law of common carriers and has been assumed in the decision of those negligence cases which have arisen from overcrowding. ( Graham v. Manhattan Railway 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.) The defendants in the case at bar exercised complete control over the avenues of access to the train upon which the plaintiff took passage. It was within their power to limit the number of passengers who should be permitted to be upon the station platform at that particular time and the number who should go or remain together upon the car platform, and it was their duty to exercise that power so far as they could reasonably foresee that a failure to exercise it would result in injury to incoming passengers."

In McGearty v. Manhattan Railway Co. ( 15 App. Div. 2) this court held that an elevated railroad company which, after its platform is full, continues to sell tickets and to allow passengers to go upon its platform in such numbers as to crowd a passenger already there off the platform into the street is liable for the injury thus occasioned to him. Such liability was not based upon the fact that the platform was insufficient to accommodate ordinary traffic, or that the structure as such was defective, but was based upon the fact that the act which occasioned the injury was in effect and in law performed by the defendant itself. The court said (p. 4): "When the plaintiff entered upon the platform it was a safe place, and he had the right to assume that no part of it would be rendered unsafe by any act of the defendant. The obligation imposed upon the defendant was to take reasonable care in securing the safety of the passenger while upon its premises, and to see that he was exposed to no unnecessary danger while there. The defendant must be assumed to have known the capacity of its platform and when it had admitted passengers to the extent of such capacity. If, when having done this, the passengers were not removed by its trains, it became its duty to permit no more to enter. It had no more right to accumulate a crowd at the rear which, pressing forward, would precipitate those at the edge of the platform into the street than it would have the right to go upon the platform and push them off by physical force."

It was established in this case beyond dispute that if the plaintiff sustained injuries on the occasion in question they were due to the act of the defendant in selling tickets and accumulating passengers upon the platform in such numbers as to render their movements uncontrollable, and that the natural rush of the crowd for the train, when it ultimately came along, was so forcible and violent as to be sufficient to inflict upon her the bodily injury of which she complains. The case cannot be distinguished from those which are herein cited in principle, although, of course, to some extent distinguishable in fact, and it follows that the judgment and order should be affirmed.

Judgment and order unanimously affirmed, with costs.