#### Anastasia Brady, Respondent, *against*The Manhattan Railway Company, Appellant.

(Decided June 3d, 1889.)

In an action against an elevated railway company for injuries to a passenger from stepping into the space between the platform of defendant’s car and the station platform, evidence was given that similar accidents had previously happened at other stations of defendant’s road of similar structure. *Held,*that this was admissible to show previous warning to defendant of the danger.

It further appeared that plaintiff stepped into such open space while leaving the car, following closely the person in front of her, and closely pressed by the person behind; there was evidence as to differences in width of platforms of different cars, and of the use at some stations of sliding bridges to close spaces between car platforms and station platforms. *Held,*that from this the jury could have inferred that plaintiff stepped, without fault of her own, into an open spaqe which it was defendant’s duty to have closed.

Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.

The facts are stated in the opinion.

*273
      *Edward S. Rappallo*and *Henry D. Sedgwick, Jr.,*for appellant.

*McKenzie*Semple, for respondent.

Larremore, Ch. J.

On the 16th day of March, 1887, respondent, while leaving one of appellant’s cars, stepped into the open space between the car platform and the station platform at Third Avenue and 42nd Street, thereby breaking her leg and sustaining other injuries. This action is to recover damages for such injuries, and this appeal is from a judgment in plaintiff’s favor for $5,000, rendered upon the verdict of a jury.

The principal point argued in behalf of appellant was the alleged improper admission of evidence, in that witnesses for plaintiff were allowed to testify to the happening of accidents of a similar character, not at the same, but at other stations upon defendant’s elevated railroad. The learned judge who presided at the trial explained that “ that question of prior accidents becomes material in view of a decision in the court of last resort in our state, holding that, in order to establish negligence in the use of a particular appliance of this character, there should be some evidence that there had been some injury to persons before that time, that its operation had caused an accident ” (citing *Laflin*v. *Buffalo South Western R. Co.,*106 N. Y. 136).

We concur with the learned judge as to the propriety of admitting the evidence in question to make out the proof required by such decision. The reason for the rule laid down in the cited case is quite obvious. Where a given appliance has served its required purpose, without casualty, for a long period, it shall not be presumed, when the first accident occurs, that the defendant is guilty of negligence. The defendant is not an insurer of the safety of passengers. It is bound simpty to exercise ordinary care, in view of the dangers attending the use of the appliance, and “to make it reasonably adequate for the purpose to which it was devoted.” When, however, previous accidents have occurred, it is to be *274presumed that the attention of defendant has been called to the perilous nature of the appliance, and that defendant has been guilty of negligence because it has not made the same safe in the respects in which it has been previously demonstrated to be faulty. We think it was only applying this rule with common sense and good judgment to hold that if other passengers had, in several cases, slipped their legs between the cars and other stations of the elevated railroad, there had been sufficient to call to the notice of tne company the danger likely to be encountered at all stations, or any particular station. Descriptions of and comparisons between the 42nd Street station and other stations on the road were given by plaintiff’s witnesses, and such testimony was sufficient to support an inference by the jury that, in general structure, and in the liability to have a space intervene between some of the cars and the platforms, the different stations were substantially similar. This was all that was necessary to be shown in order to give the evidence in dispute its limited applicability—that of establishing a previous warning to defendant. The trial judge confined the testimony that the jury were allowed to consider to accidents at other stations which occurred before the accident in question.

The foregoing views seem to us to be within the spirit of the latter authorities, and, moreover, if the opposite opinion were allowed to prevail, great practical injustice might result. The defendant, though accidents of this character had happened at several of its stations, and though the general danger was notorious, would always try to escape liability on the technical plea of lack of sufficient notice to charge it in a given ease, if the plaintiff were unable to show a previous accident at that identical station. The same principle might be invoked by a corporation owning and operating several steamboats all of which were constructed alike. If an accident occurred, let us say, through the absence of a taffrail at a particular place on one boat, its owners would claim, when sued because of a similar mishap on a sister ship, that evidence of the former casualty was inadmissible because it happened at another place and under different conditions.

*275The other points made by appellant may be dismissed without extended comment. Considering the nature of defendant’s injuries as explained by herself and her physician, we certainly do not feel called upon to set aside the verdict because of excessive damages. Nor do we think that the weight of testimony conclusively showed that defendant was not guilty of negligence. The negligence was very satisfactorily proved by a number of facts. There is first of all the fact that plaintiff stepped into the space between the car and the platform. She followed closely the person in front of her, and was in turn closely pressed by the person behind. Under these circumstances the jury could infer that she did not intentionally turn her foot so as to insert it into a small space, but that the space was wide enough for her to set her foot into it in the ordinary manner of stepping from a crowded train. Furthermore, there was evidence as to the different widths of the platforms of different kinds of cars, and also, of the existence at some of the stations of sliding bridges operated by a crank, to be used in closing up the space 'between platforms of the narrower cars and the station platforms. There was abundant evidence from which the jury could have inferred that plaintiff stepped without -fault of her own into an open space which it was defendant’s duty to have closed.

The judgment appealed from should be affirmed, with costs.

Allen and Bookstaver, JJ., concurred.

Judgment affirmed, with costs.