McKinney v. New York Consol. R. Co.

• Decision Date: 31 December 1920
• Citation: 230 N.Y. 194,129 N.E. 652
• Parties: McKINNEY v. NEW YORK CONSOL. R. CO.
• Court: New York Court of Appeals Court of Appeals

230 N.Y. 194

129 N.E. 652

McKINNEY

v.NEW YORK CONSOL. R. CO.

Court of Appeals of New York.

Dec. 31, 1920.

Action by Bert McKinney against the New York Consolidated Railroad Company. A judgment in favor of plaintiff entered on verdict was unanimously affirmed by the Appellate Division (186 App. Div. 959,172 N. Y. Supp. 906), and from an order and the judgment thereon the defendant appeals by permission.

Judgment reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division Second Department.

Harold L. Warner, of New York City, for appellant.

Thomas Downs, of New York City, for respondent.

McLAUGHLIN, J.

The plaintiff, while attempting to enter one of defendant's Fourth Avenue subway cars at the Union Square Station in the city of New York, sustained personal injuries by stepping into a space between the station and car platforms. He brought this action to recover the damages sustained, on the ground that his injuries were caused by the negligence of the defendant.

The negligence alleged was, in substance, that defendant maintained and permitted a dangerous and unsafe space to exist between the two platforms; that it failed to provide the station platform with railings, guards, or barriers to prevent passengers from being crowded or pushed into such space by crowds which it negligently permitted and invited to accumulate thereon. The answer put in issue the material allegations of the complaint. At the trial there was but little conflict between the parties as to the facts upon which the alleged negligence was predicated. The accident occurred shortly before 6 o'clock in the afternoon on the 24th of December, 1917. The plaintiff testified, and was substantially corroborated by the friend who was with him, that when he and his friend descended the subway stairs there was then a train in the station; that he did not think he could get a seat in that train, and decided to wait until another came in; that after the train pulled out he went to a place on the station platform which he thought would be opposite a door in a car in the next train when it came in; that there were then at this point less than 20 people standing around, and only 1 person between him and the edge of the platform; that another train came in about a minute after the first train had pulled out, and a crowd had, in the meantime, collected on the platform; that when the train came in it stopped so that there was a door in a car directly in front of him; that he had to step ahead only two feet in order to enter it; that when the train stopped the car door was opened, and the crowd surged forward; that he ‘shuffled along’ and his foot went sideways into the space, which was from 3 to 3 1/2 inches; that he saw no guard near the door, nor did he hear any warning given when the people surged forward to board the train; and that there were no railings or barriers along the edge of the platform. Plaintiff was also permitted to testify, against defendant's objection and exception, that there were guard rails or barriers along the edge of the station platform in the old subway at Fourteenth and Forty-Second streets-openings being left in such guards or barriers to enable passengers to enter the trains.

In submitting the case to the jury the learned trial judge called attention to the plaintiff's claim that defendant was negligent in allowing a dangerous space to exist between the...