(dissenting): The action was brought to recover damages for, personal injuries to plaintiff sustained at Geneva, N. Y., in falling on a track after alighting from a passenger train.
Plaintiff was a passenger upon a train which arrived at Geneva about seven o’clock in the evening on November 18,1903. She had been traveling in company with- her daughter, who alighted at the same time. The train consisted of a standard day coach and combination smoker and baggage car, the coach being next to.the, locomotive and the combination car in the rear.
The train .arrived in the station at Geneva upon the second track from the platform or -planking about the depot. The passengers in order to reach the planked space, about the depot were required to cross the track lying next to the planking. For a distance of about thirty feet west of the .depot building there is planking between the tracks; for a distance of over forty' feet there is no planking, and beyond that there is another planking extending for twenty or more feet towards Exchange street. Ten feet west of this latter planking there is a water plug ;, the bus stand is on'the' southerly side and west of the depot.
The plaintiff testified that she alighted from the train,'going tb the farther,end of the car in which she had been riding; that the conductor helped her down onto the ground from the car; that she started for where the noise was, following the crowd towards *167where the buses were; that she had gone but a few steps before she fell across the track and struck her right arm on the track.' @he says, “ the track that I fell on there or struck on was the opposite track.’’ She explains that she means the opposite rail of the track next to the depot. She also said at one time that she was fourteen feet from the building when she fell, and when asked if she meant the depot, she says she does not know what building it was; and when asked if she could see a building she seems to have no recollection of it. She at first said she tripped upon a tie, and after-wards upon an examination left the evidence in some doubt as to whether she knew how she did happen to fall. It appears that there was an incandescent electric light upon a pole within not more than fifty feet of the place where the plaintiff fell, as she indicated upon the photographs at the time of the trial and which were used upon the argument; that there were three electric lights in front of the station ; that the cars were lighted with a number of Pintsch lights, the conductor says five, and that the conductor at the time she was helped off the car had a lantern in his hand. The witnesses also testified with reference to the lights in the buildings and various other surroundings.
The only theory upon which negligence can be predicated is that a railroad company is bound to keep the space between its tracks level at all points where passengers are invited to alight.
It is ■ quite evident in this case that the plaintiff did not fall, as the evidence is claimed to indicate, upon the first rail of the track running next to the depot. She had alighted from the train in safety, and on the ground, as she says, and must have known that, in order to reach the platform or the buses ^towards which she was directing her steps, she would have to cross the intervening track. She said she had taken a few steps; as it would take only three or four steps to cross the intervening space in a direct line,, she could not have taken “ a few steps ” if she was exercising ordinary care without, discovering the rails and ties. It is almost incredible that she could have gone out of the car as she says and started for the buses with the rest of the crowd without knowing the exact situation, if she was exercising ordinary care. She describes upon her examination with considerable detail the manner of alighting. She also- describes the other passengers going *168towards, the buses, but upon further examination it is quite apparent that, from lack of recollection j confusion or other causes, her recollection is not clear,' and her testimony does not convey a- clear idea "as to the exact manner in which the accident happened. , She says that she. went right straight away from the car, and yet if she had. crossed the first rail in safety, as she must have done and probably did with the aid of the lantern, she must have known, if exercising ordinary care, that the space there was not planked and that she would, have, to exercise corresponding care.
She testified at first, “'I hit my foot against a tie or something; ” again she says, “I went to the door; I think it Was the front end of the car,” although on her direct examination she had testified that she got off the rear end of the car. She says it was very dark when she got off the- train ; that she could not see where she was going, yet-the" evidence is almost eonclusive'that the incandescent, electric light,, the lights in the depot and. the car were all burning and the conductor had his lantern when he assisted her from, the car. ."It seems more probable that the plaintiff failed to take notice of the surroundings and failed toi avail herself of the opportunities for protecting herself. z
A passenger may not heedlessly-leave a .train without an attempt 'to .ascertain the surroundings. The plaintiff could not shut.her eyes and walk from the train in the direction of the, noise of the other passengers,, relying upon the defendant as a guarantor that,no obstacle, slight or otherwise, would be encountered by her in reaching the point towards which she was traveling. It is true there is an obligation upon a earner to furnish ..a reasonably safe place -for passengers to alight, but cá'n it be said that, wheré the only defect complained of is a track necessary to the operation of the road and which can be easily crossed by anybody exercising ordinary care, either day or night, it is such a defect as to render a railroad com-' pony liable? Certainly passengers know that, they áre likely to encounter railroad tracks about a depot, and when,one familiar with the location, having observed it for many years, with knowledge that an intervening track is to be crossed, undertakes to cross it without attempting to see the way, he cannot be said to be exercising. ordinary care. .
, It appears from the evidence that this was the usual stopping *169place for this train ; that it had stopped there for years; that passengers had been alighting from the same point and in the same manner as the plaintiff alighted.
As was said in Lafflin v. Buffalo & S. W. R. R. Co. (106 N. Y. 136): “ There was no-evidence .that any accident had ever happened at that station.before on account of the construction of the-- platform, or that there had ever been any complaint in reference to it. On the contrary, the evidence shows that the platform had been used for many years by men, women and children, and that no one but the plaintiff had ever- been injured or had suffered any inconvenience on account of the distance of the platform from the cars. Thousands of men, women, and children must have passed from the cars to this platform in entire safety. -Under such circumstances, how can it be properly said that the defendant was guilty of any carelessness in its construction and maintenance. It was not bound so to construct-this platform as to make accidents to passengers -using the same impossible, or to use the highest degree of diligence to make it safe, convenient and useful.. It was bound simply to exercise ordinary care, in view of the dangers attending its use, to make it reasonably adequate for the purpose to which it was devoted.”; Applying that rule, and it seems to be one founded in good sense, to the casein question,-if no accident had happened before at this point, and no complaint as to the manner of maintenance had been made, how can it be said that the situation was a dangerous one ? A dangerous situation is one from which danger or accident may be reasonably apprehended, not- may possibly happen. • People may fall from various causes at points not dangerous, and where a fall is had at a point in use by many people for a long time without accident, or so far as known apprehended danger, it would seem fair to conclude that negligence .could not be predicated against one maintaining a situation at that point as it had been for many years.
The jury must have predicated the*negligence of the defendant upon a failure to maintain planking between its tracks; for, unless they disregarded the testimony with reference to the lighting, the evidence was clear that at the time of the accident there were at least three or four electric lights, besides the lights of the car and the lantern, within a distance of fifty feet on either side of the ¡fiáintiff; the distance from the depot to the electric light towards Exchange *170street being ninety-seven feet, or about forty feet from where plaintiff fell, the first of the three lights towards: plaintiff necessarily was the difference between the ninety-seven feet and the forty feet from where plaintiff fell.
The charge of the judge, to which no exception was taken by the plaintiff, was to this effect: “ The testimony of several of defendant’s witnesses shows that the lights were burning ■ at the time of the accident. . There is testimony on the part of the plaintiff to the effect that they did not see them, but I think these witnesses all testified that they did not take any notice of, them.” So that in the face of this positive testimony it would be decidedly against the weight of evidence to say that at the time of the" accident the place' was not properly lighted.
• There is no evidence from whicli it could be claimed that the ■construction of the tracks there is not the ordinary proper construction, or that there was any condition which rendered the place of more danger than that existing in the ordinary construction of railroads. So we are brought to the proposition that it was negligent for the defendant to permit passengers to alight at a point where there was no planking between the tracks. No precedent is cited for such a holding as this, and we think that it cannot be maintained. We think the evidence shows that defendant had fulfilled its full duty towards the plaintiff, that it was not chargeable With negligence in its failure to plank between its tracks, and that the injury arose from the failure of the plaintiff to use such cáre as ■one ordinarily ought to under the circumstances in which she was placed, or from some causé not explained by the evidence.
Judgment and order affirmed, with costs.