On appeal from the Hudson County Circuit Court.
For the appellant, Edward A. Markley (Howard F. McIntyre, on the brief).
For the respondent, Joseph F. S. Fitzpatrick.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
PARKER, J. The plaintiff, an intending passenger on the railroad of the defendant company, entered the Journal Square station of that company at about eight-forty-five A.M., on her way to New York, and was descending a long stairway known as No. 17 to reach the concourse and thence the train platform, when her right foot caught in an angle at the right end of a tread, tripping her up and causing her to fall to the foot of the stairway, sustaining injury, which is the basis of this suit. She had a verdict and judgment, which are before us on this appeal. The points argued are, generally speaking, refusals of the trial court to nonsuit and to direct a verdict for defendant; admission of certain evidence; exclusion of certain other evidence; alleged errors in the charge, and refusal of certain requests to charge.
The complaint alleges negligence in several respects, but the case as presented at the trial appears to be mainly confined to the first charge, viz., lack of proper care in constructing and maintaining the stairway "in a safe and standard manner so that same would be reasonably safe for persons intending to be passengers, using same."
The staircase was of iron or steel. The testimony of an architect called for plaintiff indicated that in such a staircase the ends of the risers and treads are bolted to an inclined stringer beam, which is usually of the channel type, i.e., a plate with the side edges turned up at right angles, for rigidity; that customarily these flanges are turned outward, or away from the ends of the steps, and that this is standard practice; but that in the present case the flanges were turned inward, and consequently lapped over the ends of the treads
and risers some three inches, thereby forming a triangular pocket at the end of each step, which he described as a "trap," and testified was not of standard construction. This condition was shown by photographs admitted in evidence, and the plaintiff on redirect examination marked one of the angles on the photograph as the agency that caused her fall. There was a banister, but she did not use it, both hands being otherwise occupied. This banister naturally kept people out some three inches from the wainscotting, and may be said to have lessened the chances of catching one's toe in the pocket, but this was to some extent counteracted by a moulding, wider than the flange, and which consequently increased the width of the pocket. The same witness said this was the only stairway at Journal Square having the channels turned inward; that none in the Hudson Terminal or the Grand Central Terminal were so constructed, and that he had never seen any such pockets elsewhere. Defendant's architect witness testified on direct that he had never seen other stairways "exactly similar" nor "generally similar that he had noticed particularly," and that he "honestly did not recall any instance * * * where there is a channel turned in." He claimed, however, that the pockets were out of the way and said he did not consider it bad or faulty construction.
The motions to nonsuit and to direct a verdict were rested on the following grounds: (1) No proof of any negligence; (2) or of negligence proximately causing the accident; (3) contributory negligence; (4) no proof of any standard construction, and hence none of any deviation therefrom; (5) the proof showed merely an accident; (6) and that the recess was no part of the step used for traffic.
We are clear that these motions were properly denied. We think the evidence tended to indicate that standard construction was to turn the channels outward; but conceding for the sake of argument that no standard of construction, strictly so called, was shown, there was proof that this method of turning the channels inward was unusual, and neither architect felt able to say that he ...