Plaintiff's intestate was killed when he stepped from the platform in defendant's subway station in the city of New York onto the tracks and was struck by a train. The subway station was so arranged that passengers had to pay their fares before entering upon the platform bordering the tracks. The surface of the platform was four *Page 323 feet above the tracks. A witness for the plaintiff testified that as he stood on the platform waiting for a train he noticed the intestate lying on the tracks, and, giving warning, ran to the rescue. He said that in the presence of two station agents he lifted the man from the tracks to the platform and onto a bench which was eight feet away from the edge of the platform, that the man did not appear to be conscious and sat in a slumped position on the bench, in which condition the station agents left him and returned to their duties. The witness testified further that he went to the station agent's booth, some distance from the bench, and told the agent to call a police officer as the man "would fall off the platform again," to which the agent replied, "What can I do? I am all alone. I can't do a thing," and that a special officer had been called. Later, as this witness stood near the station agent's booth reading his newspaper, he heard the rumble of an approaching train and looking up, saw the man get up from the bench and walk off the platform onto the tracks. The witness ran along the platform toward the oncoming train, shouting and waving his paper, but "The train was too close and the motorman couldn't stop." Plaintiff's intestate was crushed to death as he tried to get back upon the platform. This evidence, together with the inferences reasonably to be drawn therefrom, was sufficient to take the case to the jury upon the question whether defendant's agent, when the intestate was first removed from the tracks, exercised such care, precaution and aid as were due to an ordinary passenger and "any special care and attention beyond that given to the ordinary passenger which reasonable prudence and care demanded for his exemption from injury." (Fagan v.Atlantic Coast Line R.R. Co., 220 N.Y. 301, 307.)
However, the trial court also submitted to the jury the question of the method of the operation of the train. The record contains no evidence that would justify a jury in finding that the train was being operated in a negligent manner, or that the motorman could have stopped the train sooner than he actually did. The only witness for *Page 324 plaintiff who saw the accident repudiated on cross-examination his direct testimony in this respect. All the credible testimony places the train inside the station at the time plaintiff's intestate stepped off the platform and at a point so close to him as to make the result inevitable.
The judgments should be reversed and a new trial granted, with costs to abide the event.