126 N.Y. 18 | NY | 1891
Lead Opinion
Upon a previous occasion we reversed a judgment recovered by these plaintiffs and ordered a new trial; upon the ground that the act of the deceased, in attempting to board the moving train, was reckless and dangerous and contributed to the resulting injury. As the case was then presented, the fact was established by the evidence for the plaintiffs that the speed of the'train was from four to six miles an hour, at the time the deceased jumped on; and though it was substantially admitted that the attempt was negligence on, his part, it was argued that the act was justified, because requested, or directed by the conductor of the train. That direction was in these words: “ if you are going, jump on.” But we held that that circumstance constituted no excuse for the dangerous act; inasmuch as it created no emergency, calling for the immediate exercise of judgment in the choice between two dangers, and that it amounted to nothing more than a notification that the train would not stop, or go slower. Upon this appeal the plaintiffs endeavor to sustain another judgment, recovered against the company upon the new trial. They say that the case, though “ practically the same,” differs from the previous case in a vital feature; namely, with respect to the speed of the train. Upon the new trial evidence .was given by three witnesses that the speed of the train was between one and two miles an hour. Of these witnesses, two had previously testified to a speed of four to six miles an hour and the other had not testified upon that subject.
In view of the doubt justly resting upon the character and correctness of this evidence, we might very properly say that it was open to the court to take as the fact concerning the speed of the train the evidence given by the other witnesses in the case for both parties, which placed it at about six miles
• Sufficient responsibility is imposed upon these corporations in the operation of their roads already, without adding to it a further responsibility for the consequences of rash and unnecessary acts. The railroad and the trains upon it charge all uersons, having anything to do with or about thein, with the knowledge of possible dangers, and their presence impose the duty of being vigilant and prudent, if responsibility for an occurring injury is to be escaped. It is unnecessary to refer to authorities bearing upon the question before us. That has been done by Judge Pbokham in his opinion, when this case was formerly before us. The only difference now is that the respondents claim the speed of the train as testified "to was so
These views lead to the conclusion that the judgment below should be reversed and a new trial ordered, with costs to abide the event.
Dissenting Opinion
(dissenting). When this case was here on a former appeal (112 N. Y. 371), it was held that the plaintiff’s intestate was guilty of negligence, contributing to his death, because he attempted to board the train when running by the station at the rate of at least six miles per hour. As the case was then presented, the testimony conclusively established the fact that at the time when the train was passing the platform on which the deceased stood, it was running at that rate of speed at least, if not even more, blow, the case is here upon á very different state of facts. Upon the last trial, resulting in the judgment now under review, three witnesses called by the plaintiff testified that the train was running, at the time the deceased attempted to get on, at a rate of speed not-to exceed from one to'two miles per hour. One of these witnesses was the engineer who had charge of this very train when the accident happened, and another was the fireman. The defendant, on the first trial, gave no evidence in regard to the speed of the train, but on the last trial it called two witnesses, who testified that it was six or seven miles per hour. There were some facts and circumstances proven, bearing on the question of speed which could also have been considered by the jury, not the least important of which was the undisputed fact that, though the train was running upon a slippery track and a down grade, it was brought to a full stop within one hundred feet
In that case the danger of getting off was as great and even greater than would be an attempt to get on while the motion of the train was the same. The passenger could have remained on the train and suffered the inconvenience of being carried past her home, and in the case at bar the deceased could have waited for another train, but surely this difference in the circumstances cannot change what was held to be a question of fact in the former case into a question of law in this. The highest court in at least three of our sister states has passed
In Johnson v. West Chester & P. R. R. Co. (70 Penn. St. 357) a passenger attempted to hoard a train moving at from three to four miles per hour. There was no invitation to enter the car.- It was held that it was for the jury to say whether the danger of boarding the train when in motion was so apparent as to make it the duty of the passenger to desist from the attempt. Where the conductor failed to stop the train at the platform where the passengers landed and when the train was moving at from two to four miles per hour, he told a passenger to get off, who obeyed liis direction and was killed, it was held that this act was not in law negligence, but was a question for the jury. (Lambeth v. N. C. R. R. Co., 66 N. C. 494.)
In another case a young, vigorous man stepped down from a moving train. He had a valise in one hand and a basket in the other. There was no direction from any servant of the company. In an action to recover for injuries received it was held that it was a question for the jury whether he exercised due care. (Cumberland Valley R. R. Co. v. Maugans, 61 Md. 53.)
I think that the act of the deceased in attempting to board the train upon the invitation of the conductor. and under all' the circumstances disclosed in this case, presented a question of fact for the jury and not a question of law.
The judgment in this case cannot be disturbed unless we are prepared to.decide that the deceased was in law guilty of negligence in attempting to board the train in the manner and under the circumstances stated. The evidence of negligence-on the part of the defendant is precisely the same now as when the case was here before. On that appeal Judge Pecicham said: “ It was the duty of the railroad company (having advertised so to do) to stop its trains at the station in question, and to give ample time to all persons desirous of getting on or leaving at that station to do so.” And again, referring to the invitation of the conductor to get on the train, he said : “ It may be assumed that this direction implied a notice to the
The point that the trial judge submitted nothing to the jury except the evidence as to whether the conductor did or did not invite the deceased to get on the train is utterly untenable. The jury were expressly charged to inquire upon the evidence whether the defendant failed to perform its duty to the deceased in not bringing the train to a stop, and upon the question whether a safe opportunity was afforded to the defendant to get upon the train, they were to consider the, evidence in regard to' the invitation of the conductor. At the end of the charge defendant’s counsel requested the court to instruct the jury that in case they found that the conductor did not invite the deceased to get aboard the train, their verdict must be for the defendant, as that ended the case, and this request was allowed. . This did not withdraw from the jury the evidence bearing upon the failure of the defendant to stop, or any other question previously submitted, but was in effect an instruction that, although the defendant failed in its duty to stop the train at the station, yet there could be no recovery unless the conductor invited the deceased to get qn. If there was any error in this part of the charge it was in favor of the defendant and cannot now be used for the purpose of reversing the judgment.
The judgment should be affirmed.
All concur with Gray, J., except Ruger, Oh. J., Andrews and O’Brien, JJ., dissenting.
Judgment reversed.