FOURTH DEPARTMENT, MAY, 1904. [Vol. 94. to the remark. I again caution counsel that he is endangering his client's case by unnecessary and irrelevant allusions. I say that clients have a right to demand of their counsel carefulness along this line. The rules governing the conduct of trials and the summing up of counsel are very well understood. Counsel should discuss the evidence in this case. There can be no pretense that there is any evidence on those questions." By plaintiff's counsel: "No." We appreciate that a zealous counsel in summing up his client's cause, and speaking earnestly and extemporaneously, may sometimes inadvertently make statements and draw inferences of fact which are not strictly and literally within the lines of the evidence, and that when this has occurred and court and counsel have united in correcting the misstatements and in remedying any possible damage which they may have caused to the opposing litigant, an appellate court should not be eager to reverse a judgment. It is, however, too well settled to require argument or citation that where counsel, with apparent design and persistence, makes inflammatory and damaging statements of facts not found in the evidence and calculated to excite the passions of the jury, it is the duty of an appellate court upon review to set aside a verdict obtained under such circumstances. Such reversal will not be withheld, even though the trial judge has corrected the misstatements and directed the jury not to consider the same. (Williams v. B. E. R. R. Co., 126 N. Y. 96; Halpern v. Nassau Electric R. R. Co., 16 App. Div. 90; Stewart v. Met. St. R. Co., 72 id. 459.) In the case before us plaintiff's counsel seems to have been misled by his zeal into disregarding the admonitions of the court and into making statements with reference to the defendant which were so plainly aimed at the prejudices of the jury that we cannot safely assume them to have been without effect even though corrected by the trial justice. The counsel for the plaintiff has at best an advantage with the jury through the rule which allows him to address them last. Justice and the ordinary conduct of the trial require that he should fairly confine his summing up to the evidence in the case. It is difficult for the opposing counsel to adequately protect the interests of his client against the address of a counsel who is unwilling so to do. There is no question but that a counsel is apt to excite prejudice if he continually, even though App. Div.] FOURTH DEPARTMENT, MAY, 1904. rightfully, interrupts the address of his opponent to correct misstatements. Upon the other hand, if the latter are allowed to go unchallenged at the time and until the summing up is concluded, an objection then made with a repetition of the misstatements does little more than to repeat and emphasize the injury already done. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event, upon questions of law only, the facts having been examined and no error found therein. All concurred. Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein. EMMA D. PITKIN, as Administratrix, etc., of FAY PITKIN, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant. Negligence use by a railroad of a long, movable wooden box for the convenience of passengers entering its cars — its liability to one killed by stumbling over it · -use of movable stools in place of the box - damages in case of the death of the next of kin before the trial. In an action brought against a railroad company to recover damages resulting from the death of the plaintiff's intestate, it appeared that the defendant kept by the side of its track at a village station, for the convenience of passengers alighting from or entering its cars, a movable wooden step or box, between six and seven feet long, three or four feet wide and about six or seven inches high; that the plaintiff's intestate, who was a boy thirteen years of age, of ordinary intelligence and experience, went to the station to meet his mother, who was arriving on one of the defendant's trains; that his attention being attracted by seeing her, or in some other manner, he walked by the side of the slowly moving train with his face turned upwards; that he did not see the box and stumbling over it, fell under the wheels of the train and was killed. The accident occurred in the day time, and there was nothing to obstruct the intestate's view of the box except persons who might pass between him and it. The intestate had been at the station before the accident. The box was ordinarily kept in about the same place, and so far as appeared no other accident had ever resulted from its use. It also appeared that at the FOURTH DEPARTMENT, MAY, 1904. [Vol. 94. time of the accident the defendant had commenced to use small stools for the purpose of assisting its passengers to alight, and that the use of a large box, such as the one in question, was at least not general. Held, that, assuming that the defendant owed to the intestate the obligation to exercise reasonable care to maintain its premises in a reasonably safe condition, it did not violate this obligation by supplying the box in question and allowing it to remain upon its premises; That, even if, at the time of the accident, movable stools had come into common use, the defendant was not thereby prevented from using the box. The intestate left surviving him, as his sole next of kin, his father. He also left a mother. Before the action came on for trial, the father died. Held, that the death of the father did not terminate the right to maintain the action, but that the measure of recovery therein was limited to such damages as the father had suffered down to the time of his death. APPEAL by the defendant, The New York Central and Hudson River 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 Oswego on the 12th day of January, 1903, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 7th day of January, 1903, denying the defendant's motion for a new trial made upon the minutes. Thomas Burns, for the appellant. Frank C. Sargent, for the respondent. HISCOCK, J.: This action was brought to recover damages alleged to have been caused to the next of kin of Fay Pitkin through his negligent killing by the defendant. We think that the judgment should be reversed for the reasons that the plaintiff did not establish either negligence upon the part of the defendant or the right to recover more than nominal damages as the result of the intestate's death, even though wrongfully caused by said defendant. The accident happened July 18, 1900, at defendant's station in the village of Sackett's Harbor. It was caused by intestate's stumbling over a stepping box placed by the side of one of defendant's tracks at said station, and falling under the wheels of a passenger train which was drawing into the station. Defendant's station house stood upon its grounds some distance from the street, and was App. Div.] FOURTH DEPARTMENT, MAY, 1904. approached therefrom by a plank walk or platform. Between this walk and the tracks was an open space of some considerable width, filled in with gravel or other material. Defendant kept in this space and by the side of its track a movable wooden step or box, which is claimed by plaintiff's counsel to have been between six and seven feet long, three or four feet wide and about six or seven inches high, and which was supplied for the use and convenience of passengers in alighting from or entering the cars. It was kept in about the same place, and it was customary to so stop trains that it would be in the right location for use. Plaintiff's intestate was a boy, thirteen years of age, and, so far as appears, of at least ordinary brightness and experience, and he had been at this station before the day in question. He came down to meet his mother who was arriving on one of the defendant's incoming trains, and attracted by seeing her or otherwise he walked by the side of the slowly moving car, and turning his face upwards did not see and stumbled over the box and fell under the wheels. It was in the daytime, and there was nothing whatever to obstruct his view of the box unless temporarily some person may have got between him and it. It was close enough in to the track so that part of it would come under the car and the train was just stopping at it as the boy fell. There was evidence that at this time the defendant had commenced to use small stools for the purpose of assisting its passengers to alight, and which were put down and taken up as occasion required, and that the use of a large step, such as the one in question, was at least not general. We shall assume for the purposes of this case that the intestate was so properly at defendant's station that it owed to him the ordinary obligation to exercise reasonable care to maintain its premises in a reasonably safe condition. Giving plaintiff the benefit of this assumption, we still think that defendant did not violate this obligation by supplying and allowing to remain upon its premises the box complained of. It is somewhat difficult in our view to entirely separate the questions of the defendant's negligence and the intestate's contributory negligence, but upon the consideration of all the facts taken together, we think it was improper to allow the jury to say that the APP. DIV.-VOL. XCIV. 3 FOURTH DEPARTMENT, MAY, 1904. [Vol. 94. defendant in the exercise of a reasonable care and caution ought to have anticipated that a person coming to its station in broad daylight and exercising proper care and observation was liable to stumble over this box and fall under the car. It is conceded, as of course it must be, that it was entirely proper for defendant to furnish some sort of a step which would make it easier for passengers to get from the car step to the ground or vice versa. This was not only proper but commendable. The plaintiff, however, says that defendant ought to have used movable stools. which could be removed when the occasion for use had passed. Even if we regard the evidence as establishing that such stools had come into com non use, we do not think that there was anything in such use which limited defendant to them, or prevented it from employing the other appliance which for a long time had been maintained at this station. It was a perfectly simple contrivance with nothing inherently dangerous about it. So far as appears it was kept in about the same spot and no one prior to this day had ever found danger or difficulty in either using or avoiding it. If some stranger coming there in the night time had tripped over it a different question might have been presented. But we think there was nothing which should have indicated to or warned defendant that a person in the daytime would be injured by or as the result of it. The case is entirely different from those cited by plaintiff's counsel to sustain his right of recovery. In Ayres v. D., L. & W. R. R. Co. (158 N. Y. 254) a mail bag had been left upon the station platform. That was not its proper place and it served no useful purpose by being there. In addition, the plaintiff, who was a stranger to the location, met her accident by stumbling over the bag in the darkness while she was properly upon the platform. In Maclennan v. Long Island R. R. Co. (20 J. & S. 22) a box had been left upon the station platform. There was no legitimate reason for its being where it was, and plaintiff in this case also, being a stranger, stumbled over it in the darkness as he was using the platform. The case at bar comes more within the principles of Dougherty v. Village of Horseheads (159 N. Y. 154), Robert v. Powell (168 id. 411) and Hart v. Grennell (122 id. 371). |