38 N.Y.S. 433 | N.Y. App. Div. | 1896
This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and against the. defendant for the sum of $7,000, and from an order denying a motion for a new trial made upon the minutes of the court.
It appears- that the defendant owns and operates a bridge crossing the Hudson river from West Troy in the county of Albany,- to East Troy in the county of Rensselaer. On the outer side of the bridge there is a walk intended for foot passengers, five feet seven inches in width, then a girder two feet three inches wide, which is part of the structure and support of the bridge; then the roadway proper twenty-three feet in ’width, and comprising: First, next to the girder, a space three feet nine inches between the girder and the railroad tracks; second, two lines of railroad tracks with a space between, them; third, upon the other side a space three feet nine inches between the nearest railroad track and the. girder on that side 3 fourth, a girder of the same width as upon the other' side, and, fifth, an outer walk of the same width as that on the other side.
Near the center of the bridge there is a draw of from 250 feet to 300 feet in length;. about the center of the draw there is a trap door upon the roadway, between the girder and the north railroad track, two feet six inches in length along the girder, and extending Out from the girder towards the railroad track two feet six inches; there is a ring attached to the northwest corner of the trap door next to' the girder with a chain attached to the ring passing over a pulley, then dropped through a hole in the bridge next to the side of the girder, so that a person underneath the door desiring to raise it can do so by pulling this chain. The hinges of this trap door are on the east side thereof, the ring and chain are at the west, so that when the door is raised it rises from the west and describes - an arc towards the' easterly side.
It was constructed to allow the employees of the bridge to go down below to oil the machinery of the draw, and- for other neceé-, sary purposes. It had to be located in that part of the bridge, and
It appears from the evidence that the trap door was properly constructed, and was in a safe and proper condition. .
The foot path or way, it appears, was composed of boards laid lengthwise of the bridge, with interstices between them.
■ The plaintiff is a resident of West Troy. On April 24,1893, she went over to Troy wheeling a baby in a baby carriage, and upon her return from Troy to West Troy she did not take the sidewalk or path for foot passengers, but that portion of the way on the north side of the bridge, between the girder and the railroad track as hereinbefore described. She says that her reason for doing so was, that the interstices between the boards of the footway were so wide in places that the wheels of the carriage were liable to get between the boards, and, in addition, that she had been previously informed by an employee of the defendant, that it was safe to take the way between the girder and the railroad tracks. She was entirely familiar with the bridge, had passed over it repeatedly, and claims that she did not notice the trap door at the time -of the accident. The baby carriage had just passed over the door and she had stepped upon it, when an employee of the defendant who had gone below, desiring to come up, pulled upon the chain and raised the trap door, by means of which the plaintiff was thrown down upon the bridge and received the injuries complained of in this action.
Ijt appeared in evidence that, during ten years before the happen^ ing of the accident, more than 7,500,000 foot passengers, averaging 2,100 daily, liad crossed the bridge, and that no accident had occurred. It also appeared that women were accustomed to cross with baby carriages, many of them taking the same route as taken by the plaintiff in this action.
A motion was made at the close of the plaintiff’s evidence, and again at the close of all the evidence in the case, for a non-suit, upon the ground, amongst others, that there was no negligence shown upon the part of the defendant; that the trap door in use was the ordinary and customary kind used upon bridges of this kind; that there is no evidence that it was improperly constructed or improperly used, and that the bridge had been used for over twenty' years • that millions of people had crossed it; that up to tim time of ..this
The motions were denied, and the court in charging said : “ The only possible question with respect to the defendant’s negligence is' just this, viz.: Ought they to have permitted their servants to lift the trap door without in some way ascertaining whether a person was upon it, or about to come upon it ? ”
It seems to me that this case is within the - principle laid down in Dougan v. Champlain Trans. Co. (56 N. Y. 1); Crocheron v. N. S. S. I. F. Co. (Id. 656); Loftus v. Union Ferry Co. (84 id. 455); Burke v. Witherbee (98 id. 562); Hubbell v. City of Yonkers (104 id. 434); Lafflin v. B. & S. R. R. Co. (106 id. 136); Beltz v. City of Yonkers (148 id. 61).
- It is claimed upon the part of the respondent that the defendant should be held to the- same liability as are common carriers of passengers ; assuming that to be the correct rule, still it seems to me that the evidence in this case fails to establish actionable negligence upon the part of the defendant.
“A carrier of passengers is not bound to foresee and provide against casualties never before known and not reasonably to be expected. * * * Hence, his duty is not to be estimated by what, after an accident, then first appears to be a proper precaution against a recurrence of it.” (Cleveland v. N. J. S. Co., 68 N. Y. 306.)
. In Hubbell v. City of Yonkers (104 N. Y. 434) the plaintiff had with'his horse and carriage gone over an embankment at -the side of a street, and the plaintiff’s contention was that the defendant was negligent in not having sufficiently guarded it to prevent horses going over, and' the court said : “ The very fact that for ten years or more this embankment has been in the same condition, and that, so far as appears, no similar accident had occurred, is most cogent evidence of the lack of any negligence on the part of the city in failing to guard this spot.”
In the case at bar it appears that no accident had ever occurred from the use of this trap door before; that during .the preceding ten years millions of foot passengers had gone back and forth over the bridge; that it was a common occurrence for women with baby car
The fact that an accident has happened which might possibly have been prevented, does not necessarily indicate negligence upon the part of the defendant. “ That which never happened before , and which in its character is such as not to naturally occur to prudent men to guard against its happening at all, cannot, when in the course of years it does happen, furnish good ground for a charge of -negligence in not foreseeing its possible happening and guarding against that remote contingency.” (Hubbell v. City of Yonkers, 104 N. Y. 434, 439.) Of course it was apparent that a person might step on the trap door as it was being raised, or might be upon it when it was raised, “ but that this was likely to occur was negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty.” (Loftus v. Union Ferry Co., 84 N. Y. 455-460.)
While it was apparent,, as I have stated, that it might happen that a person should step on the trap door while it was being raised, yet the possibility that that should happen in this portion of the bridge, which was aside from the regular pathway and separate from it by a raised girder over two feet in width-; that a person traversing the bridge should step upon this trap door just at the time it was being raised, was so remote a possibility, as was demonstrated by the use of the bridge for so many years, during which millions of people passed over it without its occurrence, that it rendered the accident one of so unlikely a character that the defendant cannot be charged with negligence in not having anticipated its happening and guarded against it. “ It was not an accident of a character which was likely to happen, and there was no negligence in failing to guard against a very unlikely possibility.” (Glasier v. Town of Hebron, 131 N. Y. 447, 453.)
The order and judgment should be reversed and a new trial granted, costs to abide the event.
All concurred, except Landon, J., not sitting.
Judgment and order reversed and a new trial granted, costs to abide the event.