Anna E. Spaeth, Appellant, v. Manhattan Railway Company, Respondent

Anna E. Spaeth, Appellant, v. Manhattan Railway Company, Respondent. Second Department, December, 1905. Negligence—injury by tripping on defective mat — erroneous charge. When, in an action founded on the negligence of the defendant, it is shown that the plaintiff, a passenger on defendant’s elevated train, was tripped by her foot catching in a defective mat and there is evidence that the mat was practically worn out and “worn thin and loopy,” it is error for the court to charge, in substance, that the plaintiff must show that the particular strand or loop in the mat which caught her foot had been in a dangerous condition long enough to charge the defendant with constructive notice thereof. Appeal by fee plaintiff, Anna. E. Spaeth,, from, a judgment of fee Supreme Court in favor of the; defendant; entered in', fee office of fen clerk of the county of Westchester, on fee 26th day of April,'. 1904,. upon the- verdict, of" a jury, and also- from an order entered in said clerk’s .office- oh the- 28th day of Hay, 1904, denying the plaintiffs motion for a new trial made upon the minutes.. Aaron. J. Colnon, for the appellant. Alfred E. Mudge [Charles A. Gardiner wife him on the brief], for the respondent.. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The court erred in its charge to,- the jury. that, the; plaintiff was required by law to prove that the particular strand or loop' in the car mat which tripped her had been in. a dangerous- condition long enough to charge the defendant with constructive notice-.. She was a. passenger on one of the defendant’s elevated trains,, and while passing from- one car to. another looking for a seat was tripped and. somewhat, injured while stepping on the. usual woven rope or hemp - mat. The general trend of the- evidence indicates that one; of the- " strands stack up in the form of a loop, and that, she- caught her foot-in it. ,The allegation in the complaint is that “ her foot was caught, by a. defective, mat.” The evidence of the plaintiff, if believed by the jury, would tend to- establish the fact that fee .mat was practically worn out; that it was “ hollowish,”'“’warped off'”'and ‘^worn. thin and loopy.” The court charged, the jury in reference to the-particular loop which caused^ the plaintiff’s fall that she .must show as a condition of recovery that “it had existed for such a length of-time that the railroad company in the exercise of reasonable care-ought to have ascertained that it was there.” He further charged, as follows : “ I charge you that the general worn- condition of the-' mat, if you-find it was generally worn, worn down and hollowish,, feat there is; not any proof here which justifies, you, in. finding that; feat of itself occasioned this .injury. The' plaintiff" herself says-in her complaint and in. her testimony here that it was.some strand,, some loop which tripped her. I charge yon that they must show ■that the .condition, that, had existed for such a. length, of time, under the rules 1 have laid down tn yo.n that, the- defendant was guilty of negligence in not having repaired it.” And he finally charged that 44 if the thing happened right on this spot, if her foot- spread up this loop then it could not have been there for such a length of time that the defendant is negligent.” It was for the jury to say whether the mat was so worn out by lapse of time that it was dangerous, and if it was so badly worn that a person by the mere act of stepping on it could rake a loop which would trip the foot, the jury might well say that the length of time and the general defective condition furnished reasonable notice of the danger. The strands do not rise from the presence of a foot in the use of new mats, and it cannot be held that in an old mat each strand may throw a passenger and then be out away without creating any liability for carelessness. • If the plaintiff’s foot spread up the loop which threw her it is a fair inference that the generally worn-out condition of the mat caused it to do so, and a jury could conclude that such worn-out condition was, therefore, the direct cause of the accident. In Rovillon v. Wilson (29 App. Div. 307) it was held that knowledge of the rotten condition of one portion of a _ platform of slat work on the roof of a building imposed an obligation to examine and ascertain the condition of the entire structure. The principle of that decision applies here. • The judgment and order should be reversed. Bartlett, Woodward, Jenks and Hooker, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event. '