Werns v. Brooklyn Heights Railroad

Motion for reargument denied. The court did not overlook the case of Schmidt v. City of New York (179 App. Div. 667), although it was not cited in the points. In that case it was held that there was no visible defect in the planking which gave way, and the court held that defendants had no notice of unsafe conditions, while in the case at bar the excavation along defendant’s track was visible; it must have been made in full view of defendant’s employees operating the cars, and the jury was justified in finding that it was negligence to stop the car in such manner that the hole was immediately in front of the passenger alighting. Present — Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ.