Tomayo v. Murray

173 Misc. 728, 19 N.Y.S.2d 138, 1940 N.Y. Misc. LEXIS 1630

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 28, 1940
• Status: Published

Opinion

Per Curiam.

Defendant was entitled to dismissal as matter of law at the end of the entire case. A space, necessary for the operation of the railroad, of ten and three-quarters inches between car and station platforms at a curve in the tracks of the subway at Lenox avenue and One Hundred and Tenth street, is not of itself evidence of negligence. There being no crowding or inadequate light, the evidence showing illumination at the space by hanging lights underneath the platform, defendant railroad was under no duty to maintain a guard to warn passengers. Plaintiff’s admission that on many previous occasions she had used the station and had seen an illuminated “ Watch Your Step ” sign, and had also known of the illuminated hanging lights at the space, shows her familiarity with' the situation. Since the evidence established that the space was plainly visible, failure to observe it and use the care required to avoid it constituted contributory negligence.

Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.

All concur. Present — McCook, Hammer and Miller, JJ.