Lynch v. New York Central & Hudson River Railroad

40 N.Y.S. 775 | N.Y. App. Div. | 1896

Follett, J.:

It is not asserted by the respondent that the plaintiff contributed in any way to the accident, nor is it asserted by her that the employees on the respondent’s passenger train were negligent in its management.

The evidence in this case presented two questions of fact which ought to have been submitted to the jury; and in case either had been found in favor of the plaintiff she would have been entitled to recover:

(1) Did the negligence of Earl Buttery, the quarryman, or of his employees, cause the accident 1

(2) Was the respondent negligent in permitting the gravity road to be constructed and operated partly on its own land in the manner described by the evidence 1

It was conceded, on the trial that the respondent built the side track and built, or permitted the quarryman to build, the platform which was wholly on the respondent’s land, and permitted the quarryman to build the gravity road, partly on its land and partly on his land, for the benefit of both. The gravity road being built and operated partly on the land of the respondent by the quarry-man, he was a licensee of the respondent which became liable for the negligence of the quarryman and of his employees. (Railroad Co. v. Barron, 5 Wall. 90 ; McElroy v. Nashua & Lowell R. R. Co., 4 Cush. 400 ; Shearm. & Redf. Neg. [4th ed.] § 413; Buswell Per. Inj. § 48; Thomp. Corp. § 6293. The respondent knew how the gravity road was constructed and operated, and the fact that the negligent act which caused the injury was performéd on the land of the quarryman does not relieve the respondent from liability, as the situation was such that a negligent act on the part of the quarryman or of his employees would necessarily endanger the passengers on the road of the respondent. The gravity road was in plain sight of the respondent’s officers and employees, and it was bound to take notice of the dangers incident to its operation.

A railroad is bound to exercise the greatest vigilance and care to keep its tracks clear from obstructions, animate or inanimate, and if it fails in its duty and a passenger is injured by reason of its failure, it is liable for the injuries sustained. (Donnegan v. Erhardt, 119 N. Y. 468.) The fact that external causes over which the corporation has no control sets in motion an object which is cast upon its tracks or into its cars, causing an injury to a passenger, does not exempt the railroad from liability, provided the accident might have been prevented by the exercise of foresight and due care. In case rocks on land not belonging to the corporation are set in motion by the action of the elements and are cast on the track, causing an injury to a passenger, the railroad is liable, provided the accident ought to have been apprehended and might have been prevented by the exercise of due care. When a passenger is injured, the question always is, was the accident one which should have been apprehended by the carrier? It seems to me that the accident which caused the injury to the plaintiff should have been apprehended by the managers of this corporation. These loaded cars of stone were let down this precipitous incline at right angles with the respondent’s road without anything to control or arrest their movement except the wire cable. There was no barrier between the platform and the respondent’s main tracks. On two previous occasions a similar accident had occurred, though at a time when no train was passing, and no damage was done. A trackman who had been employed by the respondent testified that, on two occasions after the cars had dashed down upon the respondent’s road, he cleared the stones from the tracks. He further testified: “After I cleared the stones off the track I told the foreman of the Central track, John Carr, about it.” Carr testified: “ I do not know of any time when those stone cars were down on the track before that day ” (referring to the day when the plaintiff was injured). But he fails to deny that he was informed by the sectionman that cars had escaped and scattered stones on the respondent’s tracks. An employee of the quarryman testified that two years before the accident in question a similar accident occurred.

It is urged in behalf of the respondent that its officers had no notice of the previous accidents. The sectionmen and foreman were charged with the duty of keeping the respondent’s tracks in order and free from obstructions, and notice to them while engaged in the discharge of their duty was notice to the corporation. Notice to an agent while engaged in the discharge of his duties in respect to the matters intrusted to him, is notice to his principal. A railroad is charged with a positive and an affirmative duty to keep its tracks clear, and it cannot excuse itself from the performance of this duty by showing that the obstructions were caused' by the negligence of its licensee. This gravity road having been constructed with the assent of the railroad, partly on its land and partly on the land of the quarryman, it was bound to exercise due care to see that the gravity road was so constructed and operated that the tracks of the railroad should not be obstructed and passengers injured. In case a railroad corporation permits another to make a negligent use of its right of way and thereby a passenger is injured, the corporation is liable.

It seems to me that the existence and use of this gravity road, constructed and operated in the manner described, was evidence from which the jury might have found that the respondent was negligent in uniting in its construction and in permitting it to be operated in the way that it was.

Daniel v. The Metropolitan Railway Company (L. R. [3 C. P.] 216, 591; [5 H. L.] 45) is cited to sustain the contention of the respondent that a question -of fact was not presented by the evidence for the jury. In that case the city of London, pursuant to an act of Parliament, was engaged in constructing works over the line of the railway company, over which works the railway had no control. The city of London was not the licensee of the railway, which had no power to prevent or 'to control the construction of the works, as the respondent had in the case at bar, and it was held that the railway was not liable for damages occasioned to a passenger by the negligent dropping of a girder upon its passing train. It was said that the railway was not bound to employ persons to watch and see that no accident occurred from the negligence of persons whom it did not employ and could not control.

In the case last cited the lord chancellor said : “ I apprehend that all that is to be done by those who carry passengers for hire is that they are bound to see that everything under their own control is in full and complete and proper order. They are bound to see, also, if there be a certain and definite risk as to which they have any knowledge or can reasonably be supposed to have any knowledge, that it is sufficiently guarded against. For instance, a trench may be dug across a road through no fault of theirs, and in such a case they could not be held to be liable; but if there is any reasonable ground for apprehending that extraordinary precaution is wanted, they would be liable.”

In the case at bar the respondent had no control over the employees of the quarryman, but it authorized the construction and operation of the gravity road, partly on its land, and under such circumstances it was bound either to prevent its operation or to exercise due care that its operation should not injure its passengers. In such a case a railroad cannot exonerate itself by showing that the business had been delegated to others, for its duty is in such cases a positive one to take care as. opposed to the negative duty of not being guilty of heedlessness or rashness. Whether the respondent exercised such affirmative care in this case was a question of fact for the jury.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and a new trial, ordered, with costs to abide the event.