Jesse Simmons, an Infant, by Roosevelt Simmons, His Guardian ad Litem, and Roosevelt Simmons, Respondents, v. New York Rapid Transit Corporation, Appellant

Jesse Simmons, an Infant, by Roosevelt Simmons, His Guardian ad Litem, and Roosevelt Simmons, Respondents, v. New York Rapid Transit Corporation, Appellant. [MAJORITY] Action by an infant plaintiff to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant in the operation of a subway train, and by his father for expenses. Plaintiffs’ proof is that while the infant plaintiff was endeavoring to alight from a train another passenger was struck by a closing door and, in turn, fell against him and caused his foot to fall into the space between the train and the platform. Judgment for plaintiffs reversed on the facts and a new trial granted, with costs to abide the event. The verdicts were against the weight of the credible evidence to the effect that the infant plaintiff, with two other boys, was riding in subway trains for the purpose of shining shoes and that they were hurrying down to the train platform immediately prior to the accident. This proof is in conformity with the complaint and the bill of particulars, to the effect that the accident happened while the infant plaintiff was endeavoring to board a train rather than while alighting from one. It is apparent that if the testimony of the infant and that offered in his behalf be true, and that plaintiff’s leg entered the space between the ear and the platform, which space, according to plaintiffs’ proof, was less than six inches in width, his leg would have been mangled by the passing cars of the train. It is conceded that, aside from the fracture and the swelling incident thereto, the leg was not otherwise injured, even to the extent of bruises or abrasions. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.