56 Barb. 30 | N.Y. Sup. Ct. | 1865
The cause has been ably argued by the respective counsel, and several adjudged cases have been referred to, to sustain the positions which they have advanced ; but although the questions pending in the case are important, and of much interest to the parties and to the public at large, the difficulty of the case lies more in the -determination of the true character of the train in question, than in the rules of law applicable to it, when that character is ascertained.
If it was a freight train merely, upon which the company unwillingly permitted persons occasionally, in cases of emergency, or for the particular accommodation of such persons, alone, to ride thereon, then the company owed no duty towards them which has not been performed; and on the other hand, if it was a passenger train as well as a freight train, intended by the defendant for the trans
The real question therefore is, was this a freight train merely, or a passenger train as well as a freight train. An ordinary freight train is intended exclusively for the transportation of property and such employees of the company as are deemed necessary to transact the business of the train on the road. It never has a passenger car attached to it, except when some peculiar and uncommon circumstance renders it necessary. It has quite frequently and generally a small car at its rear end, which in this case I find is called a “ cab.,” sufficient to carry the employees of the company, in which it sometimes happens that a passenger is admitted. There are also trains which are denominated “ cattle trains," and they too usually have a “ cab ” attached, for the use of the employees of the road and of the owners or agents having the cattle in charge, and usually such trains are confined to the carrying of such employees and persons having charge of the cattle; though it sometimes happens that other passengers are carried in such trains. Such trains are undoubtedly freight trains; and it cannot be expected that the company should owe any duty to passengers who apply to ride on them, except to use ordinary care, in their behalf, while they are on board of the train.
Such trains have a conductor, whose business it is to see that the train has proper dispatch, and who has charge of the business connected with the freighting, but has no authority to' admit on board such train, as passengers, persons who are not connected with the freight which he carries,- or others, except by the direction of some superior officer of the company; and hence it is, that, as to passengers on such trains, there is no such obligation towards them as is the case in regard to those on passenger trains, and such trains, if through trains, stop only when'by the
Was the train in question mainly or essentially of the above character ? It ran every afternoon and evening from Rochester to Syracuse. It had an ordinary passenger car attached, which, of course, could contain at least fifty passengers. It had a conductor, who, in addition to his agency, in regard to the freight, was accustomed, at all his stopping places, to take on all passengers who applied to him to be carried on the road. He was empowered to collect the usual fare from such passengers, and he was authorized to and did collect the tickets of such persons on the train as had procured them, before entering the train. He stopped at all the way stations between Rochester and Syracuse; and he carried all passengers, male and femaló; and no special application was necessary to obtain a seat on board the passenger car. In short, though the main business of the train was to carry cattle, it was a part of its regular business, daily, to carry such passengers as applied. In my judgment, whatever the company chose to denominate, the train it was really a freight and passenger train.
Its character, as a passenger train, did not depend upon whether it was drawn up and stopped before the ticket office, at the several stations where it halted; and I think the court erred in supposing that if it was a passenger train, the company was bound to have the passenger car stopped in front of the station house. I am not aware that such is the duty of the company, in any case; nor can they, in most cases, do so with all of their passenger trains. Ordinarily some of the cars of, a passenger train are stopped in front of the station house; but whenever the train is large, as is very often the case, sometimes containing a dozen or more cars, the most of the train will
I do not consider it a material circumstance that the company did not check baggage for the passengers on 'that train, or that the passengers were left to take charge of it themselves. It is certain that they never refused or declined to carry the passenger and his baggage on board of the train; and if they invited passengers to take that train, it may be a serious question whether the statute did not require them to check all such baggage. But it is not important to determine that question here, and I therefore do not discuss it.
Is it correct to say that the railroad company did not invite passengers to take that train, or that the train was so run exclusively for the accommodation of freight ?
How is a railroad company to invite passengers to their trains except by providing suitable accommodations for them to ride; stopping so that they may get the trains; and taking and carrying all who apply? How élse do they invite passengers to their trains? "W"e know, as matter of fact, that they invite passengers to them, by putting up in their ticket offices time tables, stating the regular time for trains to pass the several stations; and as matter of fact, though not testified to in the case, that the train in question was entered on their time table.
But how can it be assumed, legally, that the passenger car of that train was not attached to it solely for the accommodation of passengers ? The company ran express trains on its road, which stopped only at the more important stations. It ran also way mail trains and other accommodation trains, which stopped at all stations; and which took up and left passengers at points where the express
With the view I have of the case, I think the company was hound to see that there was a safe and commodious passage way from the station or ticket office of the company to the place where the passenger car usually stopped. It is clear to my mind that it did not do so, and therefore the defendant was guilty of negligence; and that such neglect of the company was the cause of the injury which the plaintiff sustained. I am inclined to the opinion that the location of the cattle-guard, in Sodus street, would of itself entitle the plaintiff to recover for any damages which he sustained by falling therein; but I prefer to rest my decision of negligence on the part of the defendant, on the grounds before stated. The court below did not pass upon the question of negligence on the part of the plain
I think, upon the whole case, there was no negligence on the part of the plaintiff shown on the trial, and that the company improperly constructed the cattle-guard; that by reason of such improper construction the plaintiff was injured; and that, at least, the whole ease should have been submitted to the jury. A new trial should be granted, with costs to abide the event.
Mullin, J., concurred.
Bacon, J., did not sit.
Morgan, J., gave no opinion.
Hew trial granted.
Mullin, Morgan and poster, Justices.]