| N.J. | Nov 15, 1889
The opinion of the court was delivered by
Emma Trautwein, the defendant in error, on Sunday, the 11th of September, 1887, was a passenger on a train of the Delaware, Lackawanna and Western Railroad Company from New York city to Lyndhurst, New Jersey. She took passage in the company’s train, leaving New York at nine o’clock in the evening, and reached Lyndhurst about nine thirty-five P. M. She alighted from the train, and in leaving the station to reach the street fell over some railroad ties and received injuries for which this suit was brought. On a verdict for the plaintiff below, and judgment thereon, this writ of error was brought, and errors assigned upon the rulings of the trial judge.
The act concerning vice and immorality provides that no traveling, worldly employment or business, ordinary or servile' labor or work, either upon land or water (works of necessity and charity excepted), shall be done, performed or practiced by any person or persons within this state on Sunday. The penalty prescribed for violating this statute is the forfeiture of $1 for every such offence, to be- recovered upon conviction and paid for the use of the poor of the township in which the offence was committed. Rev., p. 1227, § 1. The section contains a proviso that it should be lawful for any railroad company in the state to run one passenger train each way over its road on Sunday for the accommodation of the citizens of the state. This proviso has the effect, not only to give to the company a right to run the specified trains on Sunday, but also confers the right upon the citizen to use such trains for ordinary travel. Smith v. New York, Susquehanna and Western R. R. Co., 17 Vroom 7. As between the company and a passenger on its train, it would seem that the latter would have the right to assume that the train on which he is
In Massachusetts, Maine and Vermont, it has been held adversely to the legal proposition adopted by the trial judge. In the federal courts, and in the courts of other sister states, the decisions have been in accordance with the ruling of the-trial judge.
A contract to carry, made on Sunday, or to be performed on Sunday, is, by force of the statute, illegal and void. No action could be maintained for the breach of such a contract, nor for services performed under it, where the right of action-rests exclusively upon a contract, express or implied. Reeves v. Butcher, 2 Vroom 224. It is, also, clear, that a plaintiff will fail where, to make a cause of action, he is compelled to rely upon an illegal contract. But the duty of persons engaged in these public employments to safely and securely carry is independent of contract. It is a duty imposed by law from considerations of public policy, and arises from the fact that persons-or .property are received in the course of the business of such employments. Marshall v. York, Newcastle and Berwick R. R. Co., 11 C. B. 655; Martin v. Great Indian R. R.
Nor was the plaintiff’s violation of the Sunday law, in a legal sense, the cause of her injury. It was only the occasion' for an injury by the defendant’s wrongful act, and hence her wrong-doing did not contribute to the injury in such a sense as to deprive her of her right of action; it was merely a condition, and not a contributory cause of the injury. Thus, in White v. Lang, 128 Mass. 598, it was held that if a person, while unlawfully traveling on Sunday, is injured by the assault of a dog, the act of traveling was not a contributory cause of the injury, and that he could, notwithstanding his own violation of the law, maintain his action against the owner of the dog. In sustaining the suit, the court said:
The ninety-second section of the Road act (Rev., p. 1012) provides that all wagons and other wheel carriages of every kind or description, traveling or passing on the highways within this state, belonging to residents therein, shall track on the-ground not less than four feet and ten inches, under the penalty of $5 for each offence, to be recovered, one moiety of which is to be paid to the overseer of the highways and the other to the informer. The penalty in this statute, like that in the Sunday law, is prescribed for the purpose of prohibition, and not revenue, and a citizen traveling a public highway with a wagon of a narrower track than that named in the statute is engaged in violating the law. In some parts of this state the use of pleasure and business wagons of the New York gauge, which is narrower than that of our statute, is quite common. In collision cases on public highways, or at railroad crossings, the defence that plaintiff is debarred of his action on the ground of contributory negligence, for the reason that the wagon which he was driving did not conform to the statutory gauge, has never occurred to counsel, who are usually astute in discovering grounds of defence under the doctrine of contributory negligence. In my experience it has never been thought worth while to inquire in such cases as to the track of the wagon injured or destroyed in such a collision, and a defence on that ground would obviously receive no consideration.
The cases sustaining the ruling of the trial judge on this head are numerous. They are cited and approved by leading text-writers in discussing this subject. Bish. Non-Cont., §§ 63, 64; 2 Wood Railw., § 318 ; Beach Con. Neg., § 81; Cooley Torts (2d ed.) 178 (155) et seq. and notes. On principle, as
The station at which this accident happened was located upon an embankment elevated above the public road, which crosses the railroad under a bridge carrying the railroad over the public road. The company had a depot building for the reception of passengers on a level with the track on' the north side of its track. At the west end of this building there were steps, for the accommodation of passengers, leading down to the public road. On the south side of the embankment there was a stairway, leading also to the public road, built by private persons residing in that neighborhood for their own convenience, and used by passengers as means of access to and from the station. The company did not construct or keep this stairway in repair. The stairway rested against the embankment of the railroad; it was on the company’s grounds and led to the-public street. From the depot building to the top of this stairway there was a gravel walk, and the employes of the company testified that the passage was kept free and opened and unobstructed. It was, apparently, a way provided as a means of access to and from the company’s depot grounds.
On the occasion when the plaintiff received her injury, the train reached the statioii at nine thirty-five. The night was -dark and stormy. There is no light in or about the depot building, and no person there to direct passengers as to the way to leave the depot grounds. The plaintiff, in crossing the tracks on her way to the stairway, fell over some timber and received the injury for which she sues. The plaintiff testified that the only time she was at that depot before that night she used this'stairway, and that she knew, of no other passage to or from the depot.
The judge submitted to the jury the question whether the plaintiff was justified in using this way out from the depot, in this language: “ Did the plaintiff do right in taking this way out? That'depends upon the question, Whether this way of passage was there by the recognition, procurement or assent
The duty of a railroad company as a carrier of passengers does not end when the passenger is safely carried to the place of his destination. The company must also provide safe means for access to and from its station for the use of passengers, and passengers have a right to assume that the means of access provided are reasonably safe. If there be two ways, one of which is faulty in construction or repair, a passenger using it and injured by its faulty condition will not be debarred of his action, although the other which he might have used was safer. Longmore v. Great Western R. R. Co., 19 C. B., N. S., 183. A company having provided one safe and convenient way of ingress and egress to and from its station may, as contended for by the company’s counsel, suffer private persons for their own convenience to have and use another way of access across its depot grounds, and it may be that those who use such a way will do so at their peril if they have notice of the private character of the way. But that is not this case. The passageway taken by the plaintiff led to the public street, and had every indication of having been provided for use by the public, as a way to and from the station. Under the
In Beard v. The Connecticut and Pass. Rivers R. R. Co., 48 Vt. 101, S. C., Am. Ry. Rep. 375, there was a stairway for passengers through the company’s depot building, and also a stairway at each end of the passenger platform. The stairway at the north end was opened at the top, and there was nothing to indicate that it was not for the use of passengers. In fact, that stairway was built by an express company, and was used exclusively by the express company for removing express freight, and opened into the street, over a platform for loading and unloading express wagons. The plaintiff, a passenger, in attempting to pass down the stairway in the dark, fell and was injured. For this injury she sued the railroad company. The defendant’s counsel requested the trial judge to charge the jury that the plaintiff could not recover unless she showed that the lower platform, iu stepping from which she was injured, was on the defendant’s premises. The court declined to so instruct the jury, but told the jury that the plaintiff, to recover, must establish that the company was guilty of negligence in leaving the stairway where it left the upper platform open and without any guard or notice to warn passengers that the stairway was not to be used as a way of passage to the street below, and that she was injured by such negligence or want of care on the part of the defendant without any neglect or want of care on her part contributing to the injury. This instruction was held to be correct. The court, in sustaining the instructions of the trial judge, speaking of the likelihood of a strauger to regard that stairway as designed to furnish a safe way of getting to the street, said: “ If not so designed, and
In the case in hand contributory negligence by the plaintiff' was negatived by the jury. The case is here solely on the use-of the passageway by the plaintiff and the duty of the company with regard to its condition and safety. We think the-instruction of the trial judge on that subject was correct. A passageway having the characteristics mentioned by the judge' became, by the company’s act, a passageway which passengers were invited to use, with respect to which the company was under a duty to have it kept reasonably safe for use. A passenger using the way under such an invitation was not bound to inquire by whose contributions the stairway was erected or maintained. Nor was the company absolved from its duty in the, premises by the fact that it erected and maintained at its own expense another way of exit.
The other exceptions on the record have been examined. We find no error in the conduct of the trial, and the judgment should be affirmed.
For affirmance—The Chancellor, Depue, Dixon, Garrison, Magie, Van Syokel, Brown, Cole, Smith,. Whitaker. 10.
For reversal—None.