#### James Weldon, Respondent, *v.*The New York, New Haven and Hartford Railroad Company, Appellant.

First Department,

December 19, 1913.

Railroad—negligence — injury to passenger by fall from defective step in station — evidence insufficient to sustain recovery.

Action by a passenger to recover for personal injuries alleged to have been sustained by a fall caused by slipping on a defective concrete step while passing through the station to his train. Evidence examined, and *held,*insufficient to sustain a recovery.

Appeal by the defendant, The New York, New Haven and Hartford 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 New York on the 1st day of April, 1913, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 24th day of April, Í913, denying defendant’s motion for a new trial made upon the minutes.

The action was to recover damages alleged to have been caused by the defendant’s negligence in not having a reasonably safe entrance to its depot.

*650
      *John M. Gibbons*of counsel *[Charles M. Sheafe, Jr.,*attorney], for the appellant.

*Walter K. Barton*of counsel *[Lewis E. Carr, Jr.,*attorney], for the respondent.

Clarke, J.:

The complaint alleges that on the 23d of July, 1910, at about seven forty-five A. M., plaintiff, at the Van Nest station of the defendant, was on his way, as a passenger, to the place where passengers board defendant’s cars; and while within his rights as a passenger was obliged to go down a pair of stairs, and in doing so his foot slipped from under bim and he fell to the bottom of some twenty steps, without any fault on his part and solely through the wrongful and negligent act of the defendant keeping and maintaining a smooth, slippery and defective step or tread in said stairs.

In his bill of particulars plaintiff set forth: “The step or tread in the stairs was slippery and defective in that it was worn smooth to such an extent as to render it unsafe and dangerous to persons passing up and down said stairs.” Upon the trial this paragraph was amended so as to include the word “slanting.”

The plaintiff was a carpenter, sixty-six years of age. His own account was as follows: “ I went to Van Nest station, to the top of the stairway. I went into the depot, purchased two tickets to Bartow. * * * So, in going out I was going down to the subway. I slipped on this concrete step and fell to my left down the stairs and landed at the bottom of the stairs. I fell continuously from the time I slipped on this step, right down to the bottom step. * * * I walked along this pathway from the station to the stairway. I had plenty of time; I walked slow. I had been over that ground before. * * * I happened to be walking slowly this day, because I had lots of time to get the train. * * * I walked slowly to the head of the steps and I slipped and fell. * * * I slipped on the concrete step and fell to my left, fell down the stairs to the bottom. Q. That is all you know about the accident, is it, the happening of the accident ? A. That is all I know.” He, therefore, places himself as walking down the pathway from *651the station to the stairway and slipping on the top step and falling down to the bottom step.

Mr. Murphy testified that about nine-thirty o’clock he found the plaintiff at. the station, and he and one Cahill took him home. *“*He pointed out a stone that was a part of the stairway. It is used as a part of the stairway. It was slanting about an inch and a half, I should judge to the best of my belief at that time, leaning towards the platform of the stairs. There is a joint there; about 6 or *7*feet long the stone is, and the joint is broke to this side. (Indicating.) * * * There was no tread on that stone at all. Q. On the top of the step, what was the condition of the top of the step 2 A. It was leaning towards the platform. * * * It was smooth. It is smooth to-day. It was a little damp, one of them muggy mornings in July. * * * The pathway from the door of the station-house to this step or coping in question was kind of a cinder path. * * * There was not any other passageway provided for passengers except over this coping or step and down to the tunnel. * * * The Court: Is this the first step of the staircase 8 * * * The witness: Yes, it was on top. The top of that was not protected by any metal tread; no tread onto it. It is there to-day, my friend. The type of the treads on the other stairs are all right, apparently.”

Whereupon the following colloquy occurred: “Mr. Gibbons [defendant’s counsel]: * * * I would like to know whether Mr. Barton now claims that the steps were slanting or whether the platform at the top of the steps was slanting. We have had an impression taken of every step of the flight. The Court : I assume it refers to the first step. Mr. Barton: It refers to a step or coping which is a part of that step and at right angles to the main treads going down. The Court: Affecting particularly the first one at the head 2 Mr. Barton: Just one step. It was necessary to go across that step, then step onto the landing and then make a sharp turn to the left to go down to the tunnel.”

The witness continuing under cross-examination: “ This was not a step, my friend. It is a coping on the wall there, used as a step. There is a wooden step inside. Q. It is not part of the stairway at all 2 A. It is a side part of the stairway. Q. *652Is it a step or not ? A. They use it as a step. * * * The Court: Do you agree or disagree on the question ? Mr. Gibbons: I do not really understand yet where this witness is putting it. The Court: Go ahead and cross-examine. Mr. Gibbons: And I do not see what right this witness has to place this accident. He came up there an hour and a half after it. The Court: He is not placing any accident. He is describing the condition of the steps. Mr. Gibbons: Unless he narrows it down to the point where the accident happened, I object to it, and move to strike it out. The Court: It is hearsay testimony on where the accident happened. Mr. Barton: But we have proved that the injured man pointed out the step that he slipped on. Now we are proving by him who came there later, the condition of it. Mr. Gibbons: As I understood the plaintiff to testify, he said he slipped on the top step. * * * Q. [To the witness]: Will you look at that photograph and see if you see the coping that you speak of there ? A. I cannot see the coping here. * * * The Court: When you say ‘the coping’ you are referring to the spot that was pointed out as the place where the man fell ? Mr. Gibbons: Yes. The Court [To witness]: Do you understand it that way *%*The witness: That is the way I understand it. The Court: It does not show on the picture ? The witness: No.”

So that we have the witness who claims to have had the plaintiff point out the place where he fell two hours after the accident, placing it at the end of the cinder pathway from the station to the stairway. And this, at that stage of the trial, was the claim of counsel and the understanding of the court.

Notwithstanding the fact that the plaintiff and the man to whom he pointed out the *locus in quo*of the accident both fixed it at the end of the path and the beginning of the stairway, Penn, a police officer, was put upon the stand for the plaintiff, and after testifying that he had used that station during the spring and summer of 1910 mostly every day, described a step about half way down the stairs, probably nineteen or twenty steps from the street, which he claimed, according to his judgment, slanted, the slant being about an inch and a half, making one end of the step that much lower than the other, at which the court said: “ This is not where *653the accident occurred, is it ? Mr. Barton: The accident occurred right on this coping or stone step at right angles to the platform. * * * The Court: I frankly confess to you that I have not got it. * * * Mr. Barton: The witness pointed out the particular concrete step in question to the witness Murphy. Now I am going to prove by this officer that he often used that, and the condition at the time of the accident. The Court: Was there only one concrete step in this whole arrangement, witness? The witness: No, probably there is forty concrete steps leading down this stairway. * * * The Court: I understand the attempt in the first instance was to show that the defect in this situation was from the first step along the concrete staircase? Mr. Barton: No, sir, not the first step. The Court: But the coping that leads unto the first step? Mr. Barton: Yes.” And, nevertheless, a large amount of testimony was taken from this witness as to the step or coping which he placed nineteen steps down.

Loehmann, another police officer, also .testified as to a step which slanted at one end, according to his judgment, about an inch and a half.

So that evidence was given of the condition of a concrete step from five to seven feet long which was depressed at one end about an inch and a half lower than at the other end, the evidence leaving the question as to whether the different witnesses were talking about the same step in the greatest degree of uncertainty, as well as to whether it was from this step that the plaintiff fell. It will be noted that the only defect specified in the complaint and in the bill of particulars as served was the smoothness of the step, and that the slant, which cut so large a figure in the evidence upon the trial, was put into the bill of particulars upon the trial, and presumably after conference with those witnesses who were not present at the time of the accident and whose sole knowledge of the place thereof was based upon hearsay. The plaintiff, who alone could know anything about the accident of his own knowledge, simply testified that he slipped on the top step and fell to the bottom, and that is all he knew about it, and that is probably the truth.

But assuming that all of the testimony was given in regard to the particular step from which he fell and that it was true, *654and that it did slant from one end to the other to the amount testified to, the obligation of a railroad. corporation in regard to its depot and grounds is expressed in *Bateman*v. *N. Y. C. & H. R. R. R. Co.*(47 Hun, 429): “ The walk upon which the plaintiff was injured was maintained by the defendant upon its own land as a sidewalk for passengers coming and going between its passenger depot and the public street. We think the measure of care due from the defendant to its passengers whom it invites to use it, is the same that is required of a municipal corporation with respect to its public sidewalks which it is required by law to maintain. * * * It is reasonable care and diligence measured by the circumstances of each case.”

The Court of Appeals, in *Palmer*v. *Pennsylvania Co.*(111 N. Y, 488), a case involving the presence of ice and snow upon a station platform, said: “We are not referred to any case laying down the precise degree of care and diligence required of such corporations under such circumstances, but we think it must be somewhat analogous to that imposed upon municipal corporations, in respect to the removal of snow and ice from public streets.”

The rule in regard to municipal corporations is expressed in *Butler*v. *Village of Oxford*(186 N. Y. 444) in a case of an accident on a sidewalk where the surface' of the stone and adjoining dirt sidewalk were not flush at that junction, the surface of the former rising above the latter by a distance of two and a half inches in the center and about five inches upon the outer.edge of the walk. The court said: *“*There not only was no evidence that anybody else had ever stumbled at this point, but, upon the other hand, there was evidence of the use of this walk by a large number of people at about the same time when plaintiff fell, and also of general use by the public at other times without .any resulting accident. .The general principles which govern the liability of a municipality in such an action as this are perfectly well settled. It is not an insurer and is not expected to maintain walks and streets in such an absolutely perfect condition as to render an accident impossible, but is expected to use reasonable care and prudence in-detecting and remedying any defect which it might be fairly anticipated *655would be dangerous and liable to cause an accident. * * * Weighing the facts here presented, we think it would be altogether too burdensome a rule if we should allow a village like this defendant to be held liable for so insignificant a defect as is here complained of.” (Citing *Beltz*v. *City of Yonkers,*148 N. Y. 67; *Hamilton*v. *City of Buffalo,*173 id. 72; *Getzoff*v. *City of New York,*51 App. Div. 450; *Corson*v. *City of New York,*78 id. 481.)

In *Duffy*v. *City of New York*(149 App. Div. 478) plaintiff slipped into a hole in the sidewalk several feet in circumference and from three to six inches deep according to the testimony of different witnesses. In reversing, this court said: “ The preponderance of the testimony is clearly that the hole at its deepest point was not more than three to four inches in depth, and this is not such a defect in the highway as will render the city liable for injury suffered therefrom.”

In the case at bar the testimony is that hundreds of people had used this stairway for a long time every day, and there is no suggestion that any other accident had ever occurred. So far as the smoothness of the step is concerned, in *Kline*v. *Abraham*(178 N. Y. 377), where the plaintiff had slipped on a marble staircase in a store which was described as “slippery as ice,” “smooth as glass” and “highly polished,” the court said, unanimously reversing- a judgment for the plaintiff, that the motion to dismiss should have been granted. “Marble, in the construction of public buildings, large fire-proof hotels and stores upon the floors and stairways, has been in common use for many years. The surface is smooth and a person walking thereon is required to use care to avoid slipping. The same is equally true with reference to floors and stairs constructed of hard wood, especially where the surface has been polished as in the case of many of our more expensive private residences, but heretofore the construction of such floors or stairways has not been considered to be dangerous, unlawful or a nuisance. ** *** In this case, as we have seen, the plaintiff was perfectly familiar with these stairs. She had been up and down the staircase at least twice daily and must have known of its condition. It was an open, visible structure, having no latent, hidden or unseen defects. It is not pre*656tended that there was any foreign substance upon the steps to make them more slippery. If they were slippery by reason of their smoothness or polish, that fact was as apparent to her as it was to her employers; she knew that the steps were not covered with rubber treads, carpets or other material, and we think the risk incidental to their use was assumed by her.”

Plaintiff was entirely familiar with this station and its stairs, as he was in the custom of using it twice a day.

I am of the opinion that the evidence did not satisfactorily establish the main defect relied upon at the trial at the *locus in quo,*and also, assuming that all the testimony given as to the condition of the step did apply to that from which the plaintiff slipped, a cause of action was not established.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.