#### Lizzie Woolsey, Respondent, *v.*The Brooklyn Heights Railroad Company, Appellant.

Second Department,

January 10, 1908.

Railroad — negligence — injury while boarding car —space between car and platform — duty to give warning — when negligence for jury — request to charge — contributory negligence — knowledge of situation.

A jiiry is not entitled to find a railroad negligent on the bare fact that there existed a space of ten inches between the station, platform and the car step at a place where both track and platform were straight.

*632Nor'is a railroad operating cars upon a "bridge negligent merely because it uses cars narrower than the usual bridge cars, although the -space between the station platform and the cars is thereby increased. -

But where the space between the platform and the cars varies owing to their ■ different widths, the railroad is bound to use reasonable care to prevent accidents -by giving warning of the fact. - ,

When, in an action to recover against a railroad , for injuries received by stepping into a. space between -the platform-and the car, there is evidence that the width of the space varied with different cars, of which the defendant, gave . no warning, and that the platform was" crowded, the negligence of the .defendant is á question for the jury.

A request to charge respecting “the proximate Or principal'cause ”, of an accident is bad,, owing to the use of fire Word' “ principal,’’..which is not a synonym . of “ proximate.” It is no error to refuse such request. .

It is error to refuse, to charge that if the plaintiff who fell into a space between • a platform and a car knew of the opening, "there was no necessity to give her any warning.

Hóóker, j., dissented in part, with opinion.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court, in favor "of the plaintiff, entered in the Office of the clerk of the county of Kings on the; 14th day of February, 1907, upon the verdict of a jury for , $1,000, and also from an order entered in said clerk’s office on the 2d day of March, 1907, denying "the defendant’s motion for. a new . trial -made upon the minutes.

*D. A. Marsh [George D. Yeomans*with him on the brief], for the appellant.

*Adolph*Ruger, for the respondent.

Miller, J.:

I am unwilling to decide that a' jury may find negligence from the bare fact of the existence" of a space of ten inches (the credible testimony is that the space in the.case at bar was-seven and one-lialf inches) between the station and car platforms. . The statement, in the-opinion in *Ryan v. Manhattan R. Co.*(121 N. Y. 126) that “on a perfectly straight track three or four inches of separation would be all that necessity required; and- as- much as should be usually maintained,” is dictum. The: court held that-the negligence charged ,-in that case was wholly unproved. The case of *Boyce*v. *Manhattan*
      *633
      *R. Co.*(118 N. Y. 314) dealt with the .precautions which an,elevated railway company,should.exercise where there was an- open space fourteen inches wide between the station and car platforms; it did not decide-that negligence .could be inferred-from the existence of the space, standing alone; and while *Langin*v. *New York & Brooklyn Bridge*(10 App. Div. 529) differs from the case at bar in that the opening or space was at a curve, the reasoning of Mr. Justice Willard Bartlett, writing 'for the court in that case, tends to support the appellant’s argument in the case at bar. I do npt .think the defendant was negligent for running its ordinary cars over the bridge; as these cars were narrower than the regular bridge cars, the open space between the station platform and the platform of the narrower cars was necessary, unless the defendant discarded some of its cars. I do not think it was obliged to do this; it was only required to exercise reasonable care so far as the question now involved was concerned, and I think it would be imposing an uncalled-for burden upon the defendant to permit, a jury to find' negligence from the bare fact that in the development of means of transportation it has come about that cars of unequal width are rim across the. bridge. While the case of *Lafflin*v. *Buffalo & Southwestern R. R. Co.*(106 N. Y. 138) is not directly in point, as the defendant in that case was a steamroad and the accident occurred at an ordinary station platform, I think that the rule of responsibility stated is applicable to the case at bar so far as the existence of the space,, standing alone, is concerned. But while.negligence could not be inferred from that bare fact, I think that the defendant was called upon to exercise a precaution not required in the *Lafflin*case; that by reason of the varying widths of the defendant’s cars, the conditions of travel in the city of ¡New York and the varying spaces between car and station platforms at different points, the ■ defendant was called upon to use reasonable care to prevent accidents by giving warning. If it were undisputed that the guard warned the plaintiff of the opening before she attempted to board the car, I do not think any of us would say that, the defendant was guilty of negligence. . The plaintiff’s theory of the case, litigated, by consent, was that there was a combination of circumstances, *i. e.,*an open space varying with the different .widths of cars, a crowded platform, and failure to give adequate-warning.. There can be no doubt that that situation *634presented a question for the jury,, but'I think the. court erred in refusing to charge as requested upon the point already discussed.

The request to charge respecting the ■“ proximate or principal cause ” was bad for using the word “ principal,” which is not a synonym of “proximate ” hence it was not error to refuse the request. ■ I think, however, the court erred in refusing to charge that if the plaintiff knew of the opening, then there was no necessity to give her any warning. The request, fairly interpreted, meant that the plaintiff could not recover if she had knowledge *at the time.*The plaintiff testified that she had never ridden on' one of these cars before, but the jury Were not bound to believe her. The object of the Warning was to give the passengers notice Of what they did not know, or possibly to call their attention to a fact from which it might momentarily have been diverted. Upon the question of freedom from contributory negligence, the plaintiff rested her case upon the assertion of lack of knowledge, and. the refusal to charge as requested may have misled the jury.

The judgment should be reversed.

Wooowarb and Jekks, JJ., concurred; Hooker, J., concurred in result in separate opinion ; Hirsohbero, P. *J.,*not voting.

Hooker, J.:

The action is for damages for personal injuries. The plaintiff while, attempting to board the defendant’s car stepped into an open space between the car platform and. the station platform at the Manhattan end of the Brooklyn bridge. Some of the plaintiff’s witnesses described the space as ten inches in width; The only ground of negligence alleged in the complaint is that the defendant carelessly and negligently caused and permitted a car which the plaintiff was attempting to board tó be and remain so constructed as to permit a large space or opening to exist between the edge of the station platform and the platform of the car which was intended as a means of access into said car, Although this was the only ground of negli- '■' gence charged, the plaintiff without objection proved that while she, with other passengers, was boarding the car, the defendant gave no warning of the existence of this space; the defendant introduced evidence tending to prove that adequate warning was, given, and *635the case was submitted to the jury on both theories. The defendant raised the question on the trial, and urges it here, that it was not negligent in permitting this space to exist.

The platforms upon, the Brooklyn bridge, as appears in the evidence, were originally built to accommodate bridge trains. After their construction trains of the defendant railroad came to be operated across the bridge and to use the same platforms. The regular bridge cars appear to be somewhat wider than the-cars which Compose the defendant’s trains; and while there is a small space between the platforms of the regular bridge cars and the station platform at the place where the plaintiff was injured, provided on account of the inevitable oscillation of the car's, the space is'considerably-wider than need be when the defendant’s narrower cars are using the platform. The track was straight at this’point. : . • '

In my opinion it is a question of fact for thfe jury under, the circumstances to say whether the defendant was negligent: in permitting such a condition to exist where passengers .are invited to leave and board the train.

In *Boyce*v. *Manhattan*R. *Co.*(118 N. Y. 314): the . plaintiff was injured"by stepping into ,'a space between the car..platform and the station platform, about- fourteen', inches wide, where the station was built on a curve and. the car formed a tangent'to the curve of the station platform. The court did not deem it-essential to determine why the railroad was constructed with so sharp a curve at the place where the accident occurred, but "pointed out that even if the open space was necessary, owing to the peculiarities of the location, some precaution could have been adopted, such as stationing a trainman to warn and assist passengers in alighting, a plank could have been thrown across, or in any event the unguai’ded hole could have been well lighted, so as to be easily.seen; none of these precautions had been adopted, and the court - determined that the submission' of the case to the jury with instructions that they were to say under all the circumstances whether the defendant was guilty of negligence that caused the plaintiff’s injuries, was not error.

In *Ryan*v. *Manhattan R. Co.*(121 N. Y. 126) the plaintiff was injured by falling into.. a space between the station platform and one *oí*the defendant’s cars,, which was variously described by -the witnesses to be from seven to fifteen inches in *636width. The negligence alleged was the allowance of such a space to exist.. The station was there built upon a curve so that the platform was convex toward the track. The court determined that where a station is located upon-a "curve in that manner, the necessary. result of the practical operation of the road will leave the ends of the. car, where the platforms are, further away from the station platform, than the center of the car, and that the bare fact of the existence of the opening between the car platform and the station is. not . and cannot be deemed negligence; and said : “Concededly some opening was necessary. The cars must not scrape the platform of the station, and must be far enough away to allow for the oscillation and swaying of the train. On a. perfectly straight track • three or four inches of separation would be all that necessity required and as much as should be usually maintained. But a' perfectly straight line c'annot everywhere be constructed;” and proceeded to state that curves in the track were inevitable, and the location of stations upon curves was dictated by the public convenience. The court continued: “But a new necessity thereupon became manifest. The body of a car forms an unbending straight line and wherever there is a curve, becomes the chord of a.n arc. If the outer line of the platform, following the curve of the track, as it should to bring all points as near- as possible to the train, shows a convexity to the cars, any one of them in passing will have its center nearer to the station than one or both ends. If the car stops and the center is within four inches of the platform, one or both ends will be further away depending upon the character or degree of the curve.”

In *Langin*v. *New York*& *Brooklyn Bridge*(10 App. Div. 529) the plaintiff was injured by falling into a space between tlie platform of the car and the curved edge of defendant’s station. That case does not determine that the existence of a space of twelve inches where the station is built along a straight line of track is not negligence, but rather that in a case of this soft where the ordinary lights were not sufficient to reveal the conditions to the plaintiff because of the crowded condition of travel, and the defendant undertook to warn passengers of the existence of the opening, the defendant was not required to give a warning which was actually brought to the notice of the plaintiff, but that “The timely utter*637anee of cautionary words in such a tone and of such a character that they*ought to be, and naturally'would be, heard and understood by passengers giving ordinary attention to what is going on around them, is a full discharge of' the obligation which the law imposes upon the common carrier under such: circumstances.”

In Coogan v. *Interborough Rapid Transit Co.*(50 Misc. Rep. 562) the plaintiff was in jured by stepping into a space of nine inches between the car and the station platform, made necessary because the station was built, on a curve, and the stationary car was tangent to it. The only negligence claimed was the omission to give warning of the existence of the space. The court approved, the finding of the lower court that ordinary care upon the part of the defendant required the giving of such warning, but held that under the circumstances of the case the plaintiff did not show the defendant’s omission in this respect.

Rone of the foregoing cases, which are relied upon by the defendant, goes to- the extent of holding that as matter of law it is not . negligence for a defendant to allow a space of ten inches where the station is built at a point where the track is straight. In the case at bar there was no curve in the line of the railroad and there was nothing to prevent the bringing of the car platform as close to the station platform as due regard for the oscillation of the car would permit, except the. fact that the defendant was endeavoring to operate cars through the station for which the station was not built nor intended. In its endeavor to accommodate platforms built for the wider bridge cars to its own equipment the defendant has permitted a space to exist concededly wider than necessary, and which some of the plaintiff’s witnesses describe as ten inches. In •traversing a space, of this character one must ordinarily step so that the distance between where his toe leaves the ground and the other heel strikes it is greater than the distance sought to be traversed; common" knowledge teaches us that this'approaches the full length of an ordinary short step. It is also a matter- of common knowledge, that one moving in the midst of a crowd of passengers such as there, was in this case, seeking to board a train, cannot ordinarily take full steps) but must be content to accommodate himself to the motion, of the crowd by stepping shorter. The "existence of so wide a space practically made it necessary to step in precisely the right place, *638with but little margin of variation. The oscillation of the car did not require so large a space,, and in my opinion it was for the jury to determine whether the defendant discharged its full duty to passengers in allowing a space to exist substantially larger than the-absolute requirements-of the case demanded. There is nothing to show that it was necessary to operate past the station cars of varying widths. Jt is to be remembered that this is not a case where passengers are required to use the car steps for egress ánd ingress, but rather is a case where the carrier provides a station platform substantially on the same level as the car platform.

For a refusal of the court to charge one of the defendant’s requests, however, I think that the judgment must be reversed. It appeared that-the crowd of passengers with whom the plaintiff attempted to board the car was large, and' there was a good deal of crowding and pushing. The plaintiff on cToss-examination testified:. “ I don’t know whether it was the people crowding behind me and those in front of me that pushed me down into this space. That .is the best answer I. can give.. I never knew how it happened, only I was down there before I knew it.” In answer to a question by the court the plaintiff said: “ We were crowded against each other. As close as we cóuld be.” The defendant called the witness Tilden solely in an .endeavor to show that the crowd was so unruly and so desirous of boarding the train at once that the plaintiff .fell into the space because she was pushed .and, crowded there by.the people surrounding her. He testified that when the train which they were to board came in and the gates were, opened the crowd “ all tried • to get in first; they pushed; they crowded; ” and that the pushing of the crowd was such that he was forced forward, aiid in attempting to board the adjoining platform of the next car .lie fell forward and his arm was thrust through the car. window. The defendant asked the Court to charge the jury that if the proximate or principal cause of this accident was the pushing or jostling of other passengéfs intend-ing to board the car, then the plaintiff cannot. recover. The court refused to charge as requested and' the defendant excepted. The request should have been- granted. The charge of negligence was that the defendant permitted so. large an opening to exist, and not ■ that it permitted an unduly large crowd upon the station platform,- or failed to preserve order therein. The defendant cross-examined *639the plaintiff and swore the witness Tilden for the purpose, of showing that the accident was caused by the pushing of the crowd rather than on account of the excessive width of the space, and' the testimony so elicited was some evidence thereof. If the jury had been permitted to consider it, and had found that the accident happened so, it would have been a complete defense to the action. The charge was in effect a denial to the defendant of its right to have the jury consider one of the defenses it had by sufficient evidence sought to make out.

The judgment should be reversed and a new trial granted, costs to abide the event.

Judgment and order reversed and new trial granted, costs to abide the event.