32 Barb. 657 | N.Y. Sup. Ct. | 1860
By the Court,
The judge at the circuit, in his charge to the jury, announced the rules of law applicable to cases of this description correctly, in the main, as is not denied; and as to the points to which exceptions were taken, I think he was also correct. He is supposed to have erred in charging the jury that the defendants and their servants were bound to exercise great care and caution in carrying the plaintiff. But this was manifestly the true rule as between the defendants and their passengers; the only question being, whether he might not, consistently with the law, have laid down a more rigorous rule. (Story on Bailments, § 601. Angell on Carriers, §§ 521 to 523. Holbrook v. Utica and Schenectady R. R. Co., 16 Barb. 115. Hegeman v. Western R. R. Corporation, Id. 353. Camden and Amboy R. R. and Transportation Co. v. Burke, 13 Wend. 611. Caldwell v. Murphy, 1 Duer, 233. Bowen v. N. Y. Central R. R. Co., 18 N. Y. Rep. 408. Ingalls v. Bills, 9 Metcalf, 1. Stoke v. Salstonstall, 13 Peters, 181, 191, 193.) The case of Brand v. Schenectady and Troy R. R. Co. (8 Barb. 368) is supposed to have laid down a different rule, and to have required the exercise of only ordinary care; but this is an entire mistake. The latter was the case of a collision between the defendant’s car and a foot passenger on a street or highway; and it was held that, with equal means of observation and equal opportunities to avoid the collision, each were bound to the exercise of reasonable and ordinary care, which ordinary care was defined to be such reasonable care as a pru
That the negligence of the plaintiff—in order to defeat the action—must have contributed to the injury or the accident, or, as the case somewhat obscurely expresses it, to the cause of the accident, is also well settled. I regard the expression just noted as intending the same thing as the injury or catastrophe itself, and as not likely to mislead the jury.
híor do I think there was any error in charging the jury that the plaintiff’s occupancy of the platform of the car, if done by the permission of the defendants or their servants, and if accompanied by active efforts, on the part of the plaintiff, to get in as safe a position as he could, and to avoid being hurt, after he saw the horse and cart ahead of the car, did not make him guilty of negligence. There is some reason for saying that such a position is, in some respects, in the case of cars drawn by horses through the streets of a city, not more unsafe than one inside of the car; and when occupied with the permission of the defendants, and without notice or information of its danger—the inside of the car being full—■ may be, perhaps, properly said not to justify the imputation of negligence to the plaintiff. The charge must be considered in the light of the evidence, and thus considered, I regard it as unobjectionable. The statutory provision, (1 R. S. 1238, § 45, 4th ed.) that a person injured while standing on the platform of a car, cannot sustain an action for the injury, provided a notice is posted inside of the car forbidding the passenger to take such a position, and provided also there is room for the passenger inside of the car, cannot avail the defendants; for, according to the plaintiff’s case, neither of these provisos were observed by the defendants. In the first place, the notice not to occupy the platform was posted outside of the car, and is not shown to have come to the knowl
2STor was the defendants’ exception tenable, to the remark of the judge, that it had been decided that where a party was injured by the negligence of the agents of a rail road company, when seated in a baggage car, if he was there by permission of the company, such party could recover. It may be said to have been rather the statement of a fact than the announcement of a rule of law. The fact that such decision had been made was not controverted, and it was used merely for purposes of illustration, and did not assume the form or character of a direct charge upon that point.
These embrace, substantially, the exceptions made to the rulings of the judge, except those made to his refusal to non-suit, and one made to his refusal to charge that there was no evidence to show such fault, negligence or mismanagement on the part of the defendants’ agents, as to make the defendants liable in this action: These present, as I think, the only serious and embarrassing questions in the case. I have had some doubt whether the evidence of the defendants’ negligence was sufficiently strong to authorize its submission to a jury, but have concluded, on the whole, that it was not error to leave that question to them. It can scarcely be said to have been entirely clear that no negligence was committed by the driver of the car. A festive and refractory horse, attached to a cart, is found three or four rods in front of the defendants’ car. Some of the evidence shows the horse to have been partly on the track. If the cars proceeded on their course, there may perhaps be said to have been a reasonable probability that the car, or the horses attached to it, would come in collision with the fractious animal in front, or so frighten and excite him as to expose the passengers in the car or on the platform to danger of injury from the horse or the cart. If the jury could legitimately have drawn such an inference, their verdict for the plaintiff would stand, and a. refusal to nonsuit would be proper. We can scarcely say that the case
Sutherland, Bonney and Hogeboom, Justices.]
On the whole I think the verdict should not be disturbed, and that the judgment at the circuit should be affirmed.
Judgment affirmed.
