19 N.Y.S. 75 | N.Y. Sup. Ct. | 1892
The action was brought to recover damages for an injury alleged to have been-sustained by the plaintiff, while a passenger on the defendant’s steamer JLeerdam, on a voyage from Amsterdam to New York. The first ground relied upon by appellant for a reversal relates to the conduct of two jurors during the trial, such conduct having been made the basis of a motion for a new trial, which was denied. We agree with the appellant that the course pursued by these jurymen in endeavoring practically to take the conduct of the case away from the court and counsel, and into their own hands, was both extraordinary and reprehensible, and, had it been availed of during the course of the trial, and before the verdict, as the basis of a motion
The other grounds relied upon for a reversal relate to the sufficiency of the proof, or the failure of the judge to withdraw the consideration of certain questions from the jury, and exceptions taken to certain requests made by the plaintiff and charged by the court. In determining these questions a brief summary of the complaint, and of so much of the testimony as is requisite to present the questions, is necessary. The complaint alleges that plaintiff, while going from his cabin to the dining saloon of the steamer, on his way to the upper deck thereof, the said dining saloon being then dimly, imperfectly, insufficiently, and negligently lit or illuminated, tripped and fell with great force and violence on the sockets fixed in or attached to the floor of said dining saloon, and used to support or secure the tables therein, dislocating his shoulder, and receiving other serious bodily injuries. In thus assigning the charges upon which the negligence of the defendant is predicated, it will be seen that the failure to properly light the dining saloon is given such prominence that in one construction to be given to the complaint it might be regarded as the sole ground upon which the negligence of the defendant is placed. Taking, however, a construction of the complaint, for the purpose of sustaining the judgment, most favorable to the plaintiff, and assuming that, in addition to the failure to properly light the saloon, the claim is made that the proximate cause of the accident was due also to the negligent manner in which the sockets fixed in or attached to the floors of the saloon were left, alter the tables were removed, we have nevertheless to consider the question raised by the defendant’s exception to the court’s refusal to withdraw from the consideration of the jury the question as to the insufficient lighting of the saloon. In so construing the complaint, the fact should not be overlooked that in terms it is not claimed that the injury resulted from falling over the sockets, which it is said were allowed to remain in the saloon, and rising some inches above the floor; the statement being that, by reason of the imperfect lighting, the plaintiff thereby fell with great force and violence on the sockets.” The only evidence presented by the plaintiff to sustain the allegation that the saloon was dimly, imperfectly, insufficiently lighted and illuminated was that of the plaintiff himself, who said: “There was, I think, one little light in the saloon at this time.” Such testimony cannot be regarded as establishing the fact that the saloon was not sufficiently lighted, nor is it evidence to establish that it was at all dark in the saloon. So far as it is made to appear, one light may have been entirely sufficient. Apart, however, from this, we think the proof makes it entirely clear that the absence of light did not in any manner contribute to the plaintiff’s injuries. The plaintiff’s testimony was: “I opened the door to go out, (my stateroom,) and when I got out to close the door I had cigars in one hand. The moment I let go I slipped; the vessel lurched, and I slipped. I said before, while coming out of the cabin I had the cigars in one hand, and the door knob in the other, and while putting the cigars in my pocket the ship lurched, and I slipped, and my toe stubbed up against this socket.” Again he says: “I opened the door with one band, to get out of the cabin of the steamer, and when I got out I tried to close it with the other, and I slipped and fell. I slipped and
We think the trial judge also erred in the instructions given to the jury at the plaintiff’s request. These were as follows: (1) “That, if the accident happened from a defect in the ship, or in the accommodation of its second cabin dining saloon, which might have been discovered or remedied upon the most careful and thorough examination of said ship and floor, such accident must be ascribed to negligence, for which the owner is liable in case of injuries to a passenger happening by reason of said accident.” (2) “That passenger carriers bind themselves to carry those whom they take into their conveyance safely so far as human care and foresight will go; that is, to the utmost care and diligence of every cautious person.” (3) “A carrier of passengers is bound to use the utmost care in the providing of safe and sufficient and suitable vehicles or vessels and other necessary or appropriate instruments and means of transportation, as well as in the management of the same, and in making such reasonable arrangements as a prudent man would make to guard against all dangers, from whatever source arising, which may naturally and according to the usual course of things be expected to occur.” (4) “The rule as to care and diligence binds common carriers of passengers to the exercise of the utmost human care and foresight, and makes them responsible for injuries and losses arising from even the slightest negligence. ”
As said in Palmer v. Pennsylvania Co., 111 N. Y. 492,18 N. E. Rep. 859: “We think the trial court was not justified in applying to this case the rule pertaining to the construction and maintenance of tracks and running machinery by a railroad corporation, which holds them to the use of the utmost possible care in discovering and remedying defects therein. That rule is applicable to such appliances of a railroad as would be likely to occasion great danger and loss of life to the traveling public, if defects existed therein, on account of the velocity with which cars were moved, and the destruction and irresistible force which accompanies such motion.” In Kelly v. Railroad Co., 112 N. Y. 450, 20 N. E. Rep. 383, the distinction between the different degrees of care to be observed by. common carriers is again pointed out, and, except in respect to cases determining the liability of carriers for injuries sustained by passengers, from causes enumerated in Palmer v. Pennsylvania Co., supra, it is said that “the rule in such cases is that the carrier is bound simply to exercise ordinary care in view of the dangers to be apprehended.” These decisions show that the courts have applied to common carriers very rigid and exacting rules, calling for the highest degree of care and diligence in matters pertaining to the construction of machinery and mechanical appliances necessary for the transportation of passengers, which rule is so ap