Storrs v. City of Utica, 17 N. Y. 104. .315 | Trout v. Vir. & Tenn. R. R. Co., 23

AMERICAN

NEGLIGENCE CASES.

BEARD v. CONNECTICUT AND PASSUMPSIC RIVERS RAILROAD COMPANY (1).

Supreme Court, General Term, Montpelier, Vermont, October, 1875.

[Reported in 48 Vt. 101.]

PASSENGER FALLING DOWN UNGUARDED STAIRWAY ON PLATFORM WHILE WAITING TO BOARD TRAIN.-A railway company is liable for damages for personal injuries sustained by a passenger while upon the platform or in the depot, where such passenger was on the premises for the purpose of boarding one of defendant's trains, and while walking upon the platform fell down an unguarded stairway in the darkness (2).

EXCEPTIONS to charge of Ross, J., on the trial in the December Term, 1874, Caledonia County.

"The plaintiff's evidence tended to show that on June 26, 1870, she went on defendant's cars from Barnet to Wells River, and intended to return the same afternoon on the regular train north, but failed to reach the station at Wells River in time to take that train; that on inquiry she was informed that an extra train would go north between nine and ten o'clock that evening, and that she could take that train if she was at the depot at the time of its arrival; that for that purpose she went to the station about ten o'clock that evening, accompanied by her nephew, about twelve years old; that when she left the train in the morning she passed down from the upper platform on a pair of stairs, through the center of the depot, the track being several feet higher than the main street of Wells River village; that on her return to the depot about ten o'clock it was very dark, the depot was unlighted, and the doors leading to the stairway through the center of the depot were closed and fastened; that on looking round she found a stairway at the south end of the depot, and passed with her nephew up those stairs to the upper platform near the track, and passed north on the platform, on the east side of the depot; that it being very dark, and there being only some men, who were perfectly civil, sitting on a bench on the east side of depot near the south end, she thought she would return to the village and get some of her friends to come and remain with her; that for that purpose she sent her nephew to see if the upper door or east-side door of depot was open, so they could pass down that way, but he found it fastened, and that on looking round they found an opening in the railing at the north end of the depot, and some stairs leading down at that end, and that she passed down the stairs with her nephew to a platform, and went along on the platform, and supposed, from the looks, that they could step from it to the ground, and in attempting to do so she fell and injured her hip so severely as to be a cripple for life. It appeared that the top of this platform was some four feet above the ground, and had been constructed, together with the stairs, by the express company, for the sole use of said company, and that until they were constructed the railing along the westerly edge of the upper platform extended to the north side. of the depot. The express company had a shed just southerly of the platform, at the foot of these stairs, into which the team

to convey the express packages was driven, and this lower platform extended about ten or ten and a half feet westerly, beyond the westerly side of the depot, and had a railing on the northerly and westerly sides, but was open on the southerly side for the convenience of loading and unloading express bundles and packages into and from the express wagon. There was no direct evidence in regard to whether the defendant owned the land on which this platform stood; but it was testified to, and uncontradicted, that there were steps extending along the westerly side of the depot building; but whether as far westerly as this lower platform did not appear.

"The defendant requested the court to charge that the plaintiff could not recover unless she showed that the place at which she received her injury at the foot and on the southerly side of this lower platform was on the defendant's premises, and claimed that there was no evidence tending to show that the place of the injury was on the premises of the defendant. The court declined so to instruct the jury, and did not submit to the jury to find whether the place of the injury was on defendant's premises or not; but told the jury that in order to entitle the plaintiff to recover, she must establish that the defendant was guilty of negligence or was wanting in the exercise of ordinary care and prudence to persons rightfully on the upper platform in leaving said stairway leading from the upper platform, and where it left the upper platform open, and without any guard or notice to warn people rightfully on the upper platform, that said stairway and lower platform were not to be used as a way of passage to the street below; and that they must also be satisfied that she was injured by such negligence or want of care and prudence on the part of the defendant, without any neglect or want of ordinary care and prudence on her part, contributing in the least degree thereto; that the plaintiff was rightfully there at the depot, and on the upper platform, if she went either for the purpose of taking the train or learning whether she could take a train over the defendant's road going north that night.

"The foregoing instruction was fully and satisfactorily explained to the jury. To the refusal to charge as requested, and to the charge that plaintiff was rightfully upon the upper platform, the defendant excepted."

W. D. CRANE, for the defendant.

E. W. SMITH, for the plaintiff.