New York County NyArchives Court.....Timpson, Jared Vs. Manhattan Railway Co 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

JARED A. TIMPSON, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

Accident — resulting from slipping upon ice on the platform adjacent to the cars 
of an elevated railroad — liability of the company.

In an action, brought to recover damages for injuries sustained by the plaintiff 
on the defendant's railroad, it appeared that the plaintiff, in leaving the 
train of the defendant, stepped upon the platform of the station, slipped and 
fell and received the injuries complained of.

There had been a considerable fall of snow the day before the accident, which 
there had been an attempt to remove from the platform, and it was snowing and 
sleeting, and the wind was blowing hard, on the day of the accident, and the 
platform upon which the plaintiff alighted was slippery either from snow or ice. 
No sand or ashes had been put upon the platform with a view to improving its 
condition.

Held, that a proper case was presented for the consideration of the jury.

That different rules as to the obligation of the company were applicable to the 
portion of the platform upon which a passenger must necessarily alight, from 
those which related to places which a passenger had an option whether he world 
make use of or not.

Appeal from judgment in favor of plaintiff on a verdict for $5,000, rendered 
after a trial at the New York Circuit, and entered in the office of the clerk of 
the county of New York, November 23,1888, and from an order denying a motion for 
a new trial, entered in said office November 21, 1888.

Howard Townsend, for the appellant.

James M. Hunt, for the respondent.

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. 

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, that 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 although it may be difficult to reconcile entirely the reasoning 
of the court in the last case cited (Palmer v. Penn. Ry. Co., 12 N. Y., 234) 
with some previous decisions, yet it seems to us that, m construing the 
particular facts of that case, 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 snow 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 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.

In the case of Weston v. New York Elevated Railway Company (73 N. Y., 595) it 
was held that the defendant was bound to be alert 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 fact 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. Pennsylvania Railroad 
Company, 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 circumstance, 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 train stops. 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 Hulbert v. New York Central Railroad Company (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 trains, 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 down 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., concurred. 

Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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