Schlessinger v. Manhattan Railway Co.

49 Misc. 504, 98 N.Y.S. 840

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1906
• Status: Published

Opinions

Scott, J.

The plaintiff tripped upon the step of a stairway, leading from one of defendant’s platforms to the street. There is no doubt of the injury or of the defective conditions from which the injury resulted. The main defense relied upon is that the stairway upon which the accident happened had been constructed by, and was owned and maintained by, the city of ¡New York. The evidence on this subject showed that, in 1896 or 1897, after defendant’s platform had been constructed for some years, the city of Hew York erected an elevated viaduct over One Hundred and Fifty-fifth street, at right angles to the avenue upon which defendant’s road ran. This work necessitated certain changes in defendant’s platform and the approaches thereto, including the stairway in question; and it is said that these changes were made by the city, or, if made by defendant, were so made at the expense of the city under a written contract between the defendant and the city which was referred to, but not produced. There were other means of getting from the platform to the street. The defendant maintains a sign on its property pointing in the direction of the stairway and indicating that it affords a means of access to the street. Assuming that the stairway was constructed by the city, and remained its property and should have been, and perhaps to some extent is, cared for by the city, I am of the opinion that this does not excuse the defendant from liability. The duty of a railway company toward its passengers extends to the exercise of reasonable care in affording them safe approaches to the stations and platforms; and this duty, in my opinion, applies not only to such approaches as may have been constructed and owned by the company, but to those constructed and owned by other persons, if constantly and notoriously used by passengers as a means of approach. Such use indicates the express or implied invitation by the carrier, and more especially when the carrier indicates the approach, by signs, as one to be used. The adoption and indication of such an approach as one to be used casts upon the carrier the duty of exercising a reasonable amount of care and inspection to see that- the approach is kept in a safe condition; and, even if it had no right to make repairs without permission and is not called upon to seek such permission, it can at least provide against injury to its passengers by erecting such barricades, or giving such warning, as will guard against accidents. D., L. & W. R. R. Co. v. Trautwein, 52 N. J. Law, 169; G., C. & Sante Fé R. R. Co. v. Glenk, 9 Tex. Civ. App. 599; East Tenn. R. R. Co. v. Watson, 94 Ala. 634. That the stairway was in a defective condition and had been for some time'was sufficiently proven, and no contradiction was attempted. The damages, though ample, were not excessive.

Judgment affirmed, with costs.

Giegebich, J., concurs.