#### Jared A. Timpson, Resp’t, *v.*Manhattan Railway Co., App’lt.

*(Supreme Court, General Term, First Department,*

*Filed May 24, 1889.)*

1. Negligence—Railroad companies—Duty as to platforms.

In an action to recover damages received by plaintiff, *by*slipping upon

*630ice upon the platform of defendant’s station, on alighting- from a train, there was cvidenbe tending to show that there had been a considerable fall of snow prior to the accident; that it was snowing and sleeting the day of the accident; that the platform was slippery, and that although an attempt had been made to remove the snow, no sand or ashes had been put upon the platform. *Held,*that a *prima facie*case of negligence was established agairjst defendant, and that the evidence justified a verdict for plaintiff. *Palmer v.Pa. Pailway Co.,*19 N.Y.St. Rep., 493, distinguished.

2. Same—Cabe and! diligence.

The care which a railroad company owes to its passengers is not discharged the moment the train stops, but that care continues, and the same diligence must be exercised on the part of the company, until the passenger is safely discharged.

Appeal from judgment, entered in favor of plaintiff, on trial at circuit, and from order denying motion for new trial. i

*Howard Towrlsend,*for app’lt; *James M. Hunt,*for res’pt.

Van Brunt, P. J.

This action was brought to recover damages for personal injuries received by the plaintiff by slipping upon ice upon the platform of the defendant’s station, and, in falling, striking against an iron pillar, and thus injuring himself.j

This case was ¡tried once before, and came up to this court upon appeal, and we see no reason now to change the opinion then expressed, ithat there was enough of competent proof to sustain the verdict, although we were compelled to reverse the judgment, because of an error in the reception of evidence. ¡

It is true, that ¡there has been called to our attention upon this appeal, a decision of the court of appeals, which had not been rendered upon the argument of the previous appeals, and althotigh it may be difficult to reconcile entirely the reasoning of | the court, in the last case cited *(Palmer*v. *Pa. Ry. Co.,*19 N. Y. State Rep., 493,) with some previous decisions, yet it seems to us that in construing the particular facts of that ca^e, it should not be held to overrule the authority of previous cases, which seem to be entirely applicable to the facts disclosed by the evidence in the case at bar.

The evidence showed that there had been a considerable fall of snow the day before the happening of the accident, and that this snpw had been attempted to be removed by shovels or brooms. It also showed that it was snowing and sleeting, and the wind blowing hard on the day of the accident, and that the platform upon which the plaintiff was compelled to alight from the defendant’s cars was slippery, whether from snow or ice, is not particularly material, and there was also evidence tending to show that no sand or ashes had been I put upon the platform for the purpose of ameliorating its dangerous condition.

Upon this condition of the evidence, it seems to us clear that the defendant was not entitled to a dismissal of the complaint. j

In the case of *Weston*v. *N. Y. Elevated Ry. Co.,*(73 N. Y., 595), it was held that the defendant was bound to be *631alert during cold weather, and see whether there was ice upon the platform, and to remove it or make it safe by sanding it or by putting ashes upon it, or in some other manner. Consequently, upon the facts being shown that this platform was in this slippery condition, and that no means had been used by either sanding or putting ashes upon the platform to make it safe for passengers who were compelled to land upon it, a *prima facie*case was made out against the defendant.

It is true that in the opinion in the case of *Palmer*v. *Pa. R. R. Co.,*above mentioned, the learned judge who delivered the same makes use of language which seems to be inconsistent with the rule above laid down. But we think that until it is distinctly held by the court of appeals that no such diligence is to be used upon the part of railroad companies, in respect to the maintenance of that part of the platform upon which the passenger is bound to alight, as to which he has no choice, we cannot concur in the view that mere ordinary care discharges the duty of the company to its passengers.

In the *Case of Palmer,*above cited, the conclusion of the court may well have been founded upon the fact that the plaintiff in that case, was well aware of the condition of the platform of the cars, and notwithstanding the fact that he knew that these platforms were slippery and covered with ice, yet failed to use the precautions which a passenger would naturally take to prevent falling under those circumstances, and therefore he was guilty of contributory negligence. We do not think that the care •which the railroad company owes to its passengers is discharged the moment its trains stop. We presume that that care continues, and the same diligence must be exercised upon the part of the company, until the passenger is safely discharged, at least. Different rules must be applied to those portions of the platform upon which the passenger must necessarily alight, from those in respect to the care and keeping of other parts of the platform, as to the going upon which the passenger has an option, and may or may not make use of the same.

In the case of *Hurlbert*v. *N. Y. Central R. R. Co.*(40 N. Y., *145),*it was held that passengers have a right to suppose that adjacent to the cars the ground admits of their going safely out. And the court further said, “ within the limits in which persons necessarily and ordinarily go to and from the cars, it is necessary that the company keep the ground safe.” And we are of opinion that the rule, as laid down, in the *Case of Weston,*is as favorable to the defendants as can prevail.

The learned court, in the trial of this case, presented this issue fairly and squarely to the jury, and, as we have seen, there was a *prima facie*case made out in favor of the plaintiff. It was for the jury to determine as to whether the defendant had discharged itself of its obligation, as laid *632down by the charge of the court in view of the evidence offered upon its behalf. The jury, having come to the conclusion that it had not, and there being evidence enough to justify them in arriving at the result which they did, we see no reason whatever for disturbing the verdict.

The judgment appealed from should be affirmed, with costs. ¡

Bartlett, J., ¡concurs.