115 N.E. 704 | NY | 1917
The action is, under a statute of Virginia permitting it, to recover damages for the neglect of the defendant by which the death of plaintiff's intestate was caused in that state. The Appellate Division reversed the judgment rendered upon the verdict of the jury and granted a new trial. The plaintiff, in appealing to this court, stipulated as required (Code of Civil Procedure, section 190, subd. 1) that upon affirmance judgment absolute shall be rendered against her.
The order of reversal of the Appellate Division was made subsequent to September 1, 1914, at which time took effect an amendment to section 1346 of the Code of Civil Procedure, which in prescribing that an appeal from a a judgment rendered upon the verdict of a jury might be taken upon questions of law, or upon the facts, or upon both, assimilated the practice on appeal to the Appellate Division in jury cases to that in actions tried before a referee or the court. The Appellate Division, therefore, reviewed all questions of fact and of law (Code of Civil Procedure, section 993) and its order of reversal, silent as to the grounds thereof, imported (Code of Civil Procedure, section 1338) that it approved the findings of fact and reversed upon the law. (Middleton v. Whitridge,
The jury might have found as the facts tending to sustain the cause of action the following: The conductor of a train of defendant traveling south from Petersburg, Virginia, on October 20, 1911, found upon it the plaintiff's intestate stupidly intoxicated; he with assistance could walk; he was indifferent or insensible to his surroundings and whatever was transpiring about him and was unable to take care of himself. After several minutes of questioning by the conductor, without answer by him, except he said once "Take me home," he handed the conductor a ticket, purchased at Petersburg, entitling him to passage from Petersburg to Carson, a hamlet twelve or fifteen minutes' run from Petersburg. The train, being an express, was scheduled not to stop at Carson, which was a flag or signal station. The conductor took up the ticket, however, and told a porter that he had a passenger to get off at Carson, and to signal the engineer when the passing whistle for Carson was blown to stop the train, and to go to the intestate to get him off when the stop at Carson was made. The porter obeyed. The train stopped at Carson at eight o'clock and fifty-five minutes in the evening. The conductor and the porter knew that the intestate was so intoxicated as to be incapable of adequately caring for himself. The porter, following the instructions of the conductor there present, assisted the intestate to alight and walk twenty-six feet and across a siding or warehouse track to and be seated upon a plank at the side of a wood pile, and directed him to sit there until the train had passed. It was very dark and the conductor and porter considered it riskful for the porter and the intestate to pass from the train to the wood pile without the lighted lantern carried by the porter. The porter, with his lantern, returned to the train, which immediately started. The next morning, between seven *305 and eight o'clock, the intestate was found lying on the track of the defendant. He was unconscious and terribly injured by a passing train or trains. The odor of whisky on his breath was very strong. He died within two hours afterward.
The point at which the intestate was seated, as we have described, was on the same side of the track as and one hundred and forty-nine feet north from the depot. He, when found in the morning, was three hundred and seventy feet north of this point. The depot was a small, one-story frame building and was open that night until midnight. In it was a telegraph office in which two small oil lamps were burning. Outside of it no lamp or light was burning. The evidence does not disclose that a person sitting where the intestate was could see any window or light within it. Between the intestate and the depot was no platform, walk, road or pathway. There was the siding track, so filled in, in parts, that wagons could pass over or along it.
Carson was a hamlet, scarcely more than a clearing in woodland with a few scattered buildings, or the crossing of a railroad by a country highway. The intestate had lived there through the seven or eight months last prior to his death. There was no evidence that a person seated as he was could see anywhere a light or a lighted window. After the intestate was assisted from the train and before he was discovered, defendant's trains had passed upon the track as follows: South-bound trains at nine o'clock and thirty-five minutes and eleven o'clock and thirty-five minutes P.M., and two o'clock and ten minutes, two o'clock and forty-three minutes and seven o'clock and twenty-two minutes A.M.; north-bound trains, three o'clock and forty-two minutes, four o'clock and thirty-eight minutes, six o'clock and thirty-three minutes A.M.
From those facts the jury was justified in finding that the conduct of the defendant, in relation to the intestate, was negligent. It was the duty of the intestate to ascertain *306
before taking passage on the train whether or not it was scheduled not to stop at Carson. The defendant might have considered him on the train and ejected him, in a lawful manner, as an intruder or trespasser. (Chicago, St. L. P.R.R. Co. v.Bills,
Duties of a carrier of the general nature under consideration here are often in the alternative. As an illustration: the counsel for the present respondent states that the greater part of the train could not be directly in front of the depot, because the length of the passenger cars was many times that of the depot. That fact imposed upon the defendant the duty either to have maintained and kept lighted, within reasonable and suitable care, a platform or walk, connecting the points of disembarkation with the depot, for use by the passengers leaving the train, or to have guided and protected the passengers from the disembarking points to the depot. The duty to assist, or warn, or guide and protect, not in itself a direct duty, may arise from the unusual conditions created by the place of stoppage, which place is not in itself the violation of a direct duty. The defendant was bound to use such care as arose out of those conditions and was commensurate with the danger to be reasonably apprehended from them. (New York, Chicago St. L. Ry. Co. v. Doane,
The defendant was under the special duty, with regard to the intestate by reason of his insensible condition, known to the conductor, of exercising such care, precaution and aid as were reasonably necessary for his safety, and of bestowing upon him any special care and attention beyond that given to the ordinary passenger which reasonable prudence and care demanded for his exemption from injury. The care which it was bound to exercise with respect to his safety would have reference to his known condition and the situation as a whole. The fact that the condition was self-imposed does not mitigate the duty. (Bragg'sAdmr. v. Norfolk W. Ry. Co.,
The jury was justified in finding, also, that the negligence of the defendant was the proximate cause of the injuries to and the consequent death of the intestate. Under the evidence in the record here, and under the charge of the trial justice, the jury could so have found, in case the evidence tended to prove (a) that the negligence caused the injuries, and (b) that those or similar injuries were reasonably to be apprehended by the defendant from the negligence, (Milwaukee St. P. Ry. Co. v.Kellogg,
The jury were justified in finding that the injuries were reasonably to be apprehended by the defendant. The defendant knew all the facts adoptable by the jury as we have stated them. It knew that the intestate in any reasonable probability would not remain all the night on the plank; that sooner or later his volition would become operative and he would seek his ticketed destination *312 or the depot there; that in doing so he would have to walk, and would lack the guidance of his senses, discretion and judgment in their normal condition. The reasonable inference and supposition was that he would go upon the track. That inference suggested the command of the porter that he should not move until the train had passed. The track alone of all about him had the element of certainty. The defendant knew that the injuries he received or similar injuries were the natural and probable consequence of the use of the track by a person conditioned and situated as he was.
The intoxication of the intestate at the time he was assisted from the train was not contributory negligence. He was negligent in becoming intoxicated, but the defendant was bound to reasonably care for him as he was. If he, unintoxicated, had taken the seat on the plank and there become intoxicated, or being intoxicated and not a passenger and under the protection of the defendant went by reason of intoxication upon the track, his own act would have produced the dangerous situation and he would have been negligent. His intoxication previous to and at the time the defendant unlawfully placed him, as its passenger, in the hazardous situation is not a direct and proximate cause of the injury and, therefore, not contributory negligence. (Black v.New York, N.H. H.R.R. Co.,
An examination of the record and the brief of respondent does not disclose any error of law at the Trial Term.
The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs to the appellant in the Appellate Division and this court.
CARDOZO, POUND, McLAUGHLIN and ANDREWS, JJ., concur; HISCOCK, Ch. J., and CHASE, J., dissent on opinion of RICH, J., below.
Order reversed, etc.