Callaghan v. City of New York

• Decision Date: 14 May 1953
• Citation: 204 Misc. 236
• Parties: Margaret Callaghan et al., Plaintiffs,<BR>v.<BR>City of New York, Defendant.
• Court: New York Supreme Court

204 Misc. 236

Margaret Callaghan et al., Plaintiffs,

v.City of New York, Defendant.

May 14, 1953.

Joseph R. Apfel for plaintiffs.

Denis M. Hurley, Corporation Counsel (Edmund P. Keating of counsel), for defendant.

PAXTON BLAIR, Special Referee.

This is an action by a woman subway passenger for injuries sustained when, under pressure from a closely packed crowd, she was caused to fall between a car and the platform. Her husband sues for loss of consortium. Both plaintiffs proved damages up to the full amount of their respective notices of claim filed with the comptroller. The question for decision is whether negligence on the defendant's part was proved.

After an examination of a great many decisions, and a study of the records and briefs underlying them, I am compelled, in spite of my great sympathy for Mrs. Callaghan's misfortune, to conclude that negligence was not proved, and that the complaints must be dismissed.

The perils of subway travel are notorious. The increase of the size of rush-hour crowds over the years is also notorious. It would be beyond my province to inquire into why this is so. As long ago as 1917 the Appellate Term in the department referred to "the bestial conditions of passenger traffic obtaining in the city of New York during the so-called `rush hours' * * *." (Broder v. New York Cons. R. R. Co., 98 Misc. 256, 258.) These conditions, it may be judicially noticed, have worsened, not improved in the interval. The trend of judicial decision has been to stiffen the obligations of those seeking to establish negligence on the part of those who operate the subways. Doubtless the courts realize that since subways are not operated at a profit but at a heavy loss, the public welfare will not be advanced by rules of decision imposing higher and higher standards of care upon the transit system, leading to more and more judgments in negligence actions. A study of recent decisions permits no other inference.

This accident happened at 5:10 P.M. on Monday, December 4, 1950, on the northbound platform at 125th Street and Lexington Avenue. This is an island platform with expresses entering on the west side and locals on the east. The expresses continue more or less straight north beyond this point, whereas all the locals turn somewhat to the east, serving the east Bronx region and in some cases going as far as Pelham Bay Park. The consequence is an unusually heavy movement of passengers across the platform at this station, but there was testimony that more people changed from expresses to locals (and this is what Mrs. Callaghan was doing when injured) than change in the opposite manner. To this factor the transit system reacted intelligently, for it assigned eleven of the seventeen guards stationed on the platform to the local side and six to the express side, notwithstanding the greater length of the express trains. There were no guard rails along the edge of the platform, but the factor is irrelevant when, as here, the injury is sustained directly opposite a car door. (McKinney v. New York Cons. R. R. Co., 230 N.Y. 194, 198.)

I have read with care the case of Lagattuta v. Murray (259 App. Div. 988) on which the plaintiffs rely. The accident in that case occurred on the northbound express platform at Third Avenue and 42nd Street. Only two guards were on duty at the time. The Appellate Division, by three votes to two, sustained a plaintiff's judgment provided she consented to its reduction to a named figure. The dissenting Justices voted to dismiss the complaint. A crucial excerpt from the plaintiff's testimony in that case was the following (fols. 68-69): "As the doors opened, the people all started pushing, the people behind me and the side of me, were pushing until I was carried off my feet. I had no control of my feet, just carried right along to the front of the platform. Then my two feet went down between the space between the platform and the train. As I did so, the people...