#### Anna J. Becker, Respondent, *v.*Interborough Rapid Transit Company, Appellant.

First Department,

November 6, 1908.

Railroad—negligence — injury while boarding subway car—weight of evidence — erroneous charge.

Action to recover for personal injuries. The plaintiff while attempting to board a subway train at a place where the platform was curved convexly slipped into the space between the-platform and the car at the entrance-gate. The platform was crowded, but well lighted and the defendant’s employees warned passengers to watch their steps. On all the evidence, *held,*that a verdict for the plaintiff was against the weight of evidence.

*456Where there was no claim that the plaintiff was pushed into the opening, it was error to charge that while it was not negligence on the part of the defendant to permit crowding,' it was obliged in view of crowding to take reasonable precautions to protect its passengers from injury, as the attention of the jurors was distracted from the real issue.

■ Appeal by the defendant, the Interborongh Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 22d day of January, 1908, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 22d day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

*Joseph H.*Adams, for the appellant.

*James P. Niemann,*for the respondents

Scott, J.:

The defendant appeals from a judgment entered upon a verdict in plaintiff’s favor and from an order denying a new trial. The plaintiff suffered slight in juries from slipping into the space between the platform and one of defendant’s cars at the subway station on the east side of Broadway at Forty-second street. The platform is somewhat curved convexly, and since the cars are straight sided, there is a space of about nine and one-half inches at each end of eácli car between its platform and the edge of the station platform. ■ The plaintiff does not claim to hold defendant liable because of the existence of this unusually wide space, but insists that in view of the existence of the space it was- the defendant’s duty to take proper precautions to warn passengers of the existence of the space, and the question of the defendant’s liability turned upon whether of not the precautions taken by defendant by way of lighting and warning were' reasonably sufficient. Upon this question we think that the verdict was against the evidence, which showed that the ■ station itself was well lighted ; that the defendant maintained a row of electric lights all along the station platform, just under the edge, and that the conductor of the car which the plaintiff sought to board, as well as another employee upon the station platform near at hand, constantly called out in loud voices, *“*watch your steps.” *457On the other hand, there is only the plaintiff’s uncorroborated testimony that the station itself was but dimly lighted and that she did hot notice the opening nor hear the warning.

It is not impossible that the verdict of the jury may have been influenced by a slight confusion as to the effect of the crowded condition of the station platform. The plaintiff testified that it was crowded, but did not attribute any negligence to the defendant by reason of such crowding.

The court in the main charge instructed the jury, in effect, that if the plaintiff was pushed into the opening (which was not claimed) the defendant was not liable, but that the defendant was bound *to*foresee the ordinary perils of the traffic, including the crowding at certain times of day, and to take reasonable precautions against the effects of such perils. This petition of the charge amounted to the submission to the jury of a question which was not in the case. Upon his attention being called to this part of the charge, the learned justice withdrew it as charged, but in effect repeated it, saying : *“*It is not negligence to permit crowding, but I say it is obliged in view of the crowding to take such reasonable precautions as will reasonably protect its passengers from injury.” This modification was excepted to, and while it states the law correctly enough, it was inapplicable to the case on trial and was calculated to distract the attention of the jurors from the real issue in the case. The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

•Patterson, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Judgment and order reversed and new trial ordered, costs to appellant to abide event.