In this action the plaintiff recovered a verdict of $6,000 against the defendant, as damages for its negligence in permitting ice to remain upon the platform of one of its stations, and render the same dangerous, so that, while he was leaving the train of the defendant on which he was a passenger, he slipped and fell, and dislocated his knee. There is enough competent proof in the case to sustain the verdict, unless some error was committed in the admission of evidence or in the charge to the jury. The plaintiff testified that he remained in the station about half an hour after his injury, and was then taken into the cars again. He was asked whether he noticed the condition of the platform when he was carried out. Objection was made to this question on the ground that the subject had been gone over fully on the previous day of the trial. The objection was overruled, and exception was taken, and the plaintiff answered that he did. The witness was next asked to state what the condition of the platform was when he was carried out. The same objection and ruling were made, exception was duly taken, and the witness answered: “It was in a better condition, and not so slippery. I saw that something had been put on the platform; whether it was sand or ashes, or some other substance, I am unable to tell.” Counsel for defendant then moved to strike out the answer, on the ground that evidence of subsequent reparation should not be given as proof of negligence. The court denied the motion, and counsel took an exception.
The objection to the question that called out this evidence was properly overruled. It was limited solely to the ground that the subject had previously been exhausted. Hot until the motion to strike out was made, was the attention of the court called to the point that the proof had no legitimate bearing on the question of negligence. Where testimony gets into a case in this way, it has been held that the court is not bound to strike it out on motion, but the remedy is to ask that the jury be directed to disregard it. Marks v. King, 64 N. Y. 628; Platner v. Plainer, 78 N. Y. 90; and Pontius v. People, 82 N. Y. 339. Ho request for instructions to the jury in reference to this evidence was made in the case at bar, and it may be, therefore, that the record would not furnish sufficient ground for the reversal of the j udgment by reason of the admission of proof tending to show that the platform was sprinkled with sand or ashes immediately after the accident, if no evidence but that of the plaintiff had been introduced on this subject. But another witness, Louis Cirker, was examined to prove the same state of facts, and this time the defendant’s counsel made his objection broader. This witness saw the plaintiff fall, and testified that the platform was slippery when he fell. Subsequently he assisted the plaintiff into the cars, when he started for home. The witness noted the condition of the platform at this time. When asked to state what he then saw in regard to the platform, the question was objected to as irrelevant and incompetent, the objection was overruled, exception was taken, and the witness answered: “When I carried Mr. Timpson out, with the assistance of some other gentlemen, I know there was sand on the platform.” He also stated that the platform was not slippery at that time. The only inference to *675be drawn from this evidence, and the inference which the plaintiff must have desired to have the jury draw, was that the defendant had made the platform safe after the plaintiff was hurt. This fact, however, if it was a fact, could not be properly considered upon the question whether the defendant had previously been negligent or not. An accident may happen which could not be reasonably foreseen, and for which no one is to blame, and yet which at once suggests the adoption of some precaution the necessity of which could not have been known before. It would be a harsh rule of law which would make the subsequent adoption of this precaution evidence of prior negligence. That it is error to receive such proof is clear on principle, and is settled by authority. Dougan v.Transportation Co., 56 N. Y. 1; Baird v. Daly, 68 N. Y. 547, 541; Salters v. Canal Co., 3 Hun, 338. In those cases where evidence as to changes after an accident has been held to have been properly received, it was either admitted without objection, or because it was competent in some other light than merely as an admission of negligence at the time of the injury. In the present case, however, it is impossible to see that it had any other tendency. On the oral argument, the suggestion was made that it showed the existence of unused facilities for making the platform safe; that if the sand was there it ought to have been put on the platform sooner. But the presence or absence of the sand on the platform in no wise affected the obligation of the defendant towards its passengers. It was bound to be alert, when there was ice on the platform, to remove the ice, or make it safe by placing sand upon it, or in some other way. Weston v. Railroad Co., 73 N. Y. 595; Sheppard v. Railway Co., 20 Wkly. Rep. 705. And it owed this duty just the same whether it had the sand at the station, or had failed to provide any sand at all. The trial judge, in denying the motion to dismiss the complaint at the end of the plaintiff’s case, said that the question as to the defendant’s negligence was a close one. Here, then, as in Baird v. Daly, supra, it cannot be said that the admission of any evidence to which objection was taken may not have influenced the result. The judgment should therefore be reversed, and a new trial should be granted, because of the reception of the testimony as to what the defendant did to the platform after the accident had happened.
With reference to a new trial of the case, and in view of the recent decision of the court of appeals in Lafflin v. Railroad Co., 106 N. Y. 136, 139, 12 N. E. Rep. 599, it is deemed proper to intimate a doubt as to whether the utmost care and diligence are required of the carrier in the maintenance of such a platform as that on which this injury occurred. It was not necessary to apply any more stringent rule than that adopted in the case of Weston v. Railroad Co., above cited, to justify the submission of this case to the jury. Judgment reversed, and new trial granted, with costs to abide event.