William C. Fahner, Respondent, v. The Brooklyn Heights Railroad Company, Appellant

William C. Fahner, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. Negligence — injury to a passenger who puts his arm through the glass in a swing' door on an elevated railroad, platform while trying to prevent the door from striking him—proof that such an accident had never before happened — degree of care required of the railroad company. In an action to recover damages for personal injuries it appeared that the plaintiff entered a station on the defendant’s elevated railroad, paid his fare and ■ started, for the purpose of taking a car, to pass through a doorway, which was fitted with two swinging doors, in the upper half of each of which were two panes of glass, ten inches wide and three feet long, divided by a wooden cleat. As the plaintiff approached the doorway a passenger, who had preceded him, permitted one of. the doors to fly back in the plaintiff’s face. To prevent the door from, striking him, the plaintiff threw up his arm, which passed through the glass in the door, cutting him quite seriously. The door in question was fitted with double-thick glass, which was not protected in any way. This quality of glass was in general use upon the defendant’s system for panes of the same size as those with which the doors in question were fitted, and a carpenter in the employ of the defendant, who was. charged with the duty of making the necessary repairs when the glass panels in the station doors were broken, testified that, during a period of eight years, he had never heard of an accident like the one which happened to the plaintiff. It appeared, however, that for the larger sized glass panels in the station doors the defendant used plate glass, which is thicker than double-thick glass. Held, that the case came within the rule that a carrier of passengers is not bound to foresee and provide against casualties never before known and not reasonably to be expected, and that his duty is not to be estimated by what, after an accident, then first appears to be a proper precaution against a recurrence of it; That, as a general rule, when an appliance or machine or structure, not obviously dangerous, has been in daily use for many years and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of culpable imprudence or carelessness; That the defendant was only obliged to use ordinary and reasonable care towards the plaintiff while he was in its station; That negligence could not be -imputed to the defendant because of its use of double-thick glass instead of plate glass, it not appearing that plate glass was better for the purpose than the double-thick glass, or that there was any reason to anticipate that the accident complained of would, in the ordinary course of events, happen. Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on. the 16th day of May, 1902, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 20th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes. I. R. Oeland and George D. Yeomans, for the appellant. Carl J. Heyser, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff entered the station of the defendant’s elevated railroad at Fulton and Cleveland streets, East New York, paid his fare, and was about to pass out of the station for the purpose of taking a. car. In doing so he was obliged to pass through a doorway, in which the defendant maintained two swinging doors, these doors swinging in both directions, as was shown to be common in public places. These doors were of wood, about two feet six inches wide, and at a height of three feet ten inches from the floor were two glass panels, each about ten inches wide, with a wooden cleat or support running between them, so that the upper half of the door presented two panes of glass ten inches wide and about three feet long, set between the wooden cleat and the sides of the doors, which were three or four inches wide. As the plaintiff approached these doors a passenger preceded him, and passing through permitted one of the doors to fly back in the face of the plaintiff. To prevent the door striking him, the plaintiff threw up his arms, which passed through the glass in the door, cutting him quite seriously. He brings this action to recover his damages, alleging negligence on the part of the defendant in maintaining these doors. Upon the trial the learned justice presiding submitted to the jury whether the defendant ought to have anticipated that an accident of this character was likely to occur and to have guarded against it by placing a glass within the doors which would have been capable of withstanding the contact, and the jury has found a verdict for the plaintiff, upon which judgment has been entered for $536.77. The defendant appeals. It may be assumed that the plaintiff, in raising his arm to avoid coming into more serious contact with the door, was not chargeable with contributory negligence. He appeai-s to have been following the ustial course of passengers in seeking access to the trains of the defendant, and the jury might properly reach the conclusion that he was in the exercise of reasonable care. A more serious question is presented by the denial of the defendant’s motion to dismiss the complaint, upon the ground that the plaintiff had failed to establish negligence on the part of the defendant. The plaintiff testified that the glass in these doors was not “ heavy plate glass; it was a light pane of glass. * * * There was nothing between me and the glass. It was simply the body of the door below that was of wood, and there was glass above, and on the level with my hand it was glass, and there were no bars or other protection across the glass. * * * I lived in the vicinity of this station at the time, and I am living there about four years. I had been accustomed to taking the train at this same station during all of that time, of going through this same kind of door. The door is changed since then. It was an ordinary door, with glass panels in the top of it at that time, and the casings ran outside of the doors. * * * I observed the doors on this station after my injury for several days afterwards, for a month afterwards. Those doors have been changed since, but not for quite some time after it. They were not changed on the 30th of March,” the day on which the diagram in evidence was made. This is the entire testimony of the plaintiff, in so far as it has any bearing upon the question of defendant’s negligence. His witness Schillinger, an architect, testifies to the diagram of. the doors, and says that there were no bars across the door. He says: “ I have seen other doors of this character in public places, lots of them. * * * I have done lots of them myself.” He also testified that from his observation and experience, doors of this character were usually fitted with plate glass; that “ they generally have plate glass and a striking plate on them, you know—see? * * * The striking plate is on the sill, on the jamb; that is what they are supposed to put their hands on. They are not supposed to put their hands against the glass. There is nothing there to put their hands on excepting the glass in these doors that I am speaking of; there is nothing covering the glass. The frame of the door from the glass over is 4 inches wide.” This is the plaintiff’s entire case, in so far as it relates to the defendant’s negligence. The doors appear to have been of the same general character commonly used in public places; there is the clear inference from the plaintiff’s testimony that they had been in use at this station, through which he had been accustomed to pass at frequent intervals for a period of four years, at least, and there is no suggestion that any one else was ever injured by these doors, or that anything ever occurred which tended to suggest to the defendant that such an accident as the plaintiff sustained was likely to occur. There was no proof that it had been found necessary at other places to place guards over the windows in similar doors, or that the plate glass which the plaintiff’s witness testified was commonly used, was capable of a greater resistance than that which was used by the defendant, or that the glass which was actually used was inferior, for the purposes, and under the circumstances in which it was used, to plate glass. The defendant’s only witness, a carpenter, testified that he had been in the employ of the defendant for eight years, and that he had charge of- the repairs about the various stations; that he remembered the occasion of the breaking of the glass at the Cleveland street station, and that he made the repairs there; that the broken glass was what was known as double-thick glass. He said : “ There was plate glass in there one time, but we made two lights out. of it, so we put in double-thick glass. That plate glass was three-eighths of an inch thick, and the double-thick glass is a • little over an eighth of an inch thick. It might have been two years ago when the plate glass was in there. There is a support put up through the centre of it. That is an inch, that is wood and an inch and a quarter thick — inch and a quarter by two and a quarter. A wooden bar put up through the centre of the door. It formerly was all one plate. Now it is two plates with1 a space, a frame between. * * * I heard of accidents to these doors when they are broken; notice comes to me about it; I am required to repair them. I never before, during my experience writh the company knew of this door or. any of the similar doors being broken by passengers putting their hands through. I never heard of anybody putting their hands through.' I have often heard of glass breaking, the wind breaking it and so on. I never heard of a passenger being injured by one of these doors, as I remember.” The witness subsequently testified that when he referred to the wind breaking the glasses, he meant that the wind blew the doors open and they struck against the stop with such violence as to break the glasses, and he said that the glass used in the doors'where the plaintiff was injured was the thickest glass they have to put in doors, aside from plate glass; “ that is the only kind we use on the road, that is for that size. That is what is generally used on the road, and has been for years. * * * We never use plate glass where, we have a strip up through the centre; it is only where it is one. big light of glass that I use plate; I can’t use the thin then.” It thus appears from the undisputed evidence in this case that the defendant has used glass in its doors of the same kind that was in the door where the plaintiff was hurt for a series' of years, and that this use was general over its system where glass of the same size was used, and that the witness, who was in a position to know of these accidents, because he was called upon to make the repairs, in a period of eight years had never heard of any person or passengers being injured by the breaking of one of these glasses. He had known of their being broken by the action of the wind, and this appears to have been the only thing which their experience had warranted them in guarding against. This, it seems to us, brings the case within the rule so often asserted, that a carrier of passengers is not bound to foresee and provide against casualties never before known and not reasonably to be expected, and that its duty is not to be estimated by what, after an accident, then first appears to be a proper precaution against a recurrence of it, and it has been held that this rule is not confined to common carriers, but is applicable generally to negligence cases. (Dwyer v. Hills Brothers Co., 79 App. Div. 45, 46, and authorities there cited.) As a general rule, when an appliance or machine or structure, not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of culpable imprudence or carelessness. (Lafflin v. Buffalo & Southwestern R. R. Co., 106 N. Y. 136, 141.) In the absence of any evidence that any one had ever been injured by the use of double-thick window glass, under the circumstances disclosed by the evidence, and where the evidence is undisputed that similar glass had been used- in the door where the injury occurred for two years, and upon the defendant’s railroad system generally for a number of years, and that for a period of eight -years one in a position to hear of such an accident if it had occurred, had never learned ■of such a case, it would seem that it was error to permit the jury to speculate upon the question of the defendant’s negligence. The case is well within the rule that where an accident is not the reasonable, natural and probable result of the situation which ought to have been foreseen by the defendant in the exercise of the degree of care exacted from a carrier of passengers, no liability follows. (Ayers v. Rochester Bailway Co., 156 N. Y. 104,108, and authorities there cited.) So far as the evidence discloses the defendant may, in the exercise of a sound judgment, have chosen double-thick glass instead of plate glass for use in its doors, and even were it established that plate glass was better, a mere error in judgment is' not negligence. So far as the record discloses, there was no reason to anticipate that any one would be injured; the only purpose of the. glass in the doors was to prevent collisions between persons using the same, or for lighting the inclosure, and the experience of the defendant warranted it only in anticipating the accidents which had previously befallen these doors. Within the station, where the results of an accident were hot likely to be serious, and' in cases where danger is' not to be apprehended, if due and proper care is exercised by the passenger, the rule is well established that the owner is responsible only for the want of ordinary and reasonable care (McGrell v. Buffalo Office Building Co., 153 N. Y. 265, 271, and authorities there cited), and clearly the jury would not be justified in finding negligence in using double-thick glass in place of plate glass, where the evidence did not show that plate glass was better for the purpose than the glass actually used, or that there was any reason to anticipate that the accident complained of would, in the ordinary course of events, result. There was no evidence that it was customary to place .guards over glasses used in swinging doors, or that such guards were necessary to the safety of passengers, so that the only question of the defendant’s negligence was based upon the quality Of glass used, without any evidence to show that plate glass was safer than the glass which was found in the door at the time of the accident. The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.