Bateman v. New York Central & Hudson River Railroad , 14 N.Y. St. Rep. 454 ( 1888 )

Landon, P. J.:

The walk upon which the plaintiff was injured was maintained by the defendant upon its own land as a sidewalk for passengers coming and going between its passenger depot and the public street. We think the measure of care due from the defendaut to its passengers whom it invites to use it, is the same that is required of a municipal corporation with respect to its public sidewalks, which it is required by law to maintain. We can perceive no valid reason why its duty should be any more or less stringent. When a railroad company is in the act of carrying a passenger, the passenger cannot participate in the management, but commits his safety to the care of the company, and becomes the passive object of its protection. When he is upon a sidewalk he can take care of himself if it is reasonably safe for public travel. In the former case the highest diligence and care are necessary for safety; in the latter case a less degree of care and diligence will suffice. It is reasonable care and diligence measured by the circumstances of each case. This distinction is pointed out in recent cases, in which the facts would seem to call for as strict a measure of care as in this case. (Morris v. N. Y. C. and H. R. R. R. co., 106 N. Y., 678; Laflin v. B. and S. W. R. R. Co., id., 136; Weston v. N. Y. Elevated R. R. Co., 73 N. Y., 595.)

Tested by the rules applicable to streets and sidewalks in cities and villages, we are called upon to say whether, as was suggested in Goodfellow v. Mayor (100 N. Y., 19), the irregularity or depression in this pavement was so slight that the court would be justified in holding'as a matter of law, that it was not negligence on the part of the railroad company to omit to repair it. The irregularity or depression is less in this case than in the one cited, and less than in Clemence v. Auburn (66 N. Y., 334), in both of which the question was held to be one of fact for the jury. No doubt this case is near the border line. Where different inferences may fairly be drawn from the same circumstances, the jury should draw the decisive inference. We cannot set aside the verdict as “ contrary to the evidence,” for it is not, if the jury could fairly draw the inference they have drawn. We think we are obliged to hold as a matter of law, that the jury had the right to pass upon the question as one of fact.

We do .not think there is any ground to disturb the verdict because of the alleged contributory negligence of the plaintiff.

The court, we think, properly submitted the question of prospective damages to the jury. The instruction was that the plaintiff was entitled to recover for such injuries as it is “ reasonably certain that she will suffer hereafter.” Reasonable certainty is all that can bé had with respect to the future. The cases hold that that is enough. They also hold that where the evidence leaves the case so balanced or conjectural that reasonable certainty is not shown, the case is not made out. If the best that can be said, with respect to a continuance of the injury or suffering, is that it may be so, and it may not be, then there is a failure of proof in that regard. (Strohm v. N. Y., L. E. and W. R. R. Co., 96 N. Y., 305; Mosher v. Russell, 44 Hun, 12.) Here the evidence tended to show that the plaintiff had not recovered from the injury. If the jury believed that evidence, they had to give it some weight upon the question of damages.

The testimony of the witness Birch was properly received. He and the witness Cole examined the depression in the sidewalk. Cole made the measurements and Birch observed they were correct. Cole entered them upon a memorandum, which Birch signed. Birch testified that He knew the memorandum to be true when he signed it, but without recourse to the memorandum he could not state the size of the several dimensions. Looking at the figures did not refresh his recollection as to what the dimensions were. He could only state them as he saw them, and because he knew they were true as entered. He was permitted to look at the paper and state them as there entered. His testimony was thus confined to what he swore he knew to be true. (McCormick v. R. R. Co., 49 N. Y., 315.)

The evidence to the effect that the defendant replaced the worn-out stone by a better one was carefully restricted, both by counsel and the court, to the question at issue upon the trial, but not raised here, whether the defendant had control over the sidewalk. It was competent upon that question. (Morrell v. Peck, 88 N. Y., 398.) All that the defendant could ask was an instruction that it was not evidence of negligence, and that was given.

Judgment affirmed, with costs.

Fish and Parker, JJ., concurred.

Judgment affirmed, with costs.