88 N.Y.S. 609 | N.Y. App. Div. | 1904
Lead Opinion
The plaintiff sued to recover for personal injuries which she alleges were sustained by being thrown by the sudden starting of one of defendant’s cars while she was attempting to alight.
Upon the trial there was no serious dispute but that the bell was rung to start the car. The defendant claimed, however, that it was rung by some passenger on the rear platform while the conductor was inside the car. Counsel for the plaintiff contended not only that it was a question of fact for the jury as to whether the bell to ■start the car was rung by the conductor or by a passenger, but also that it was for the jury to say whether the starting of the car under the circumstances was or, was not negligence on the part of the defendapt, irrespective of the question of .who pulled, the bell,, and that whether the conductor rang the bell or some one else .did, the jury might find that the starting of the car was an act of negligence for which the defendant was liable.
This latter contention the court refused to uphold, and instructed the jury that unless they “ find as a fact in this case that the conductor did ring the bell or that the motorman started the car without the ringing of the bell,” they must find a verdict for the defendant, and that “to give a verdict for the plaintiff” they must find “that the starting of the cap was by the action, of the conductor or motors man.” The learned trial justice asked the jury to find upon two questions of fact aside from the general verdict, first, “ Had the plaintiff alighted with her feet upon the ground where the car started?” and, second, “Was the signal bell to start the car rung by the conductor ? ” The jury were unable to answer the first question, but answered the second in the negative, and also found a general verdict for the defendant.
The question upon this appeal is whether the charge of the court,
In support of the contention that this view of the learned trial justice was erroneous, the appellant relies upon the obligation which rested upon the defendant as a carrier of passengers, and the relation of carrier and passenger that existed between the defendant and the plaintiff, which made it the duty of the defendant to see to it that the plaintiff was not injured, either through any act of negligence of its own or on the part of a third person, which included the obligation of seeing to it that the plaintiff had a reasonable opportunity to alight and that the car was not started while she was in the act of alighting. As abstract propositions, or as formulations of the rules bearing upon the obligations which rest upon a common carrier of passengers, we might have little fault to find with these contentions, but the concrete question which we are required to pass upon is within much narrower limits, namely, whether or not the obligation resting upon the defendant made it responsible for an. injury occasioned by the unauthorized act of a passenger in pulling the bell and thus starting the car.
In approaching the discussion, we assume the appellant would concede that the action of the motorman in.starting the car in response to the proper signal was not a negligent act, and that there was no affirmative act of negligence on the part of the conductor which was the cause of the accident. The negligence of the defendant, if any, must consist, therefore, in the failure of the conductor to at all times have under his control the bell cord, so that it was made impossible for a passenger to ring the bell and start or stop the car. In other words, the logic of the appellant’s contention must carry him to the affirmance, of the proposition that the defendant was an insurer against any accident which might result to a passenger in alighting from a car caused by the unauthorized action of another passenger, whether by accident or design, in pulling the bell.
The cases relied upon by the appellant in support of this contention are not in point. Poulin v. Broadway & Seventh Ave. R.
There is • no suggestion here that the conductor had reason to apprehend that a passenger would pull the bell, and, therefore, to predicate negligence upon the fact of its having been pulled by a passenger without authority and without the knowledge ór assent of the conductor as the plaintiff was .alighting, it would be necessary, as stated, to go to the extent of holding that under any and all circumstances the duty rested upon the conductor of so controlling and handling the bell rope while a passenger was alighting so that its being pulled by a passenger was impracticable or impossible.
Considering the greater danger to be apprehended from such an unauthorized act of a passenger on a steam or an elevated railroad as compared with the less serious consequences to be anticipated from such an act when committed by a passenger upon a street surface road, we assume it will be conceded that the obligation, to say the least, is as strict and stringent in the case of the steam or elevated railroad as in that of the street surface railroad. Although with respect to none of these roads have we any case directly in point, there are two which furnish, we think, strong argument in
In Ferry v. Manhattan Railway Co. (118 N. Y. 497), wherein the plaintiff received injuries while attempting to alight from one of the defendant’s trains, the question was whether the train was started by one of the brakemen or by a' passenger who caught hold of the bell rope to steady himself. The court charged that if the j ury found that the train was started by the passenger, the defendant was .not negligent, but if not so started it. was negligent. This charge was not expressly held to be a correct exposition of the law, but it was seemingly approved, in the opinion of the Court of Appeals, although it appears that the defendant having received the benefit of that charge and the plaintiff having recovered a verdict, the affirmance of the judgment rested upon the fact that, as the jury had found in plaintiff’s favor upon the disputed questions of fact, the verdict should not be disturbed. And in McDonnell v. N. Y. C. & H. R. R. R. Co. (35 App. Div. 147), where a passenger while standing, as the evidence tended to show, upon the platform of a car, was thrown to the ground as the result of the unauthorized application of the air brake by a fellow-passenger, by which act the train while moving at a rapid speed was suddenly stopped and in which case the verdict of the jury was favorable to the defendant, in holding that the plaintiff was guilty of contributory negligence in being upon the platform, the learned justice writing the opinion affirmed the judgment as supported by sufficient evidence, but he also referred with approval to the case of Deyo v. N. Y. C. R. R. Co. (34 N. Y. 9), wherein it appeared that “ some evil and malicious person had drawn out spikes and- pushed some of the rails from their bed and by this means the engine and part of the cars were turned off the track ” and the person was injured; and at the Circuit the plaintiff'was non-suited and the judgment was sustained at General Term and in the Court of Appeals. These two cases would seemingly indicate that even as to steam and elevated railroads a passenger injured through the unauthorized act of a fellow-passenger in interfering with the operation of the train cannot recover of the railroad company on the ground of negligence.
There was no suggestion that the conductor was not properly attending, to his duties or that he was at any part of the car where of right he should not have been, but the plaintiff stands fairly and squarely upon the proposition that it was the duty resting upon the defendant under any and all circumstances to protect her from being injured while alighting by the starting of the car, and that though her injury was caused by the unauthorized act of a passenger in ringing the bell, nevertheless it was competent for the jury to find the defendant guilty of negligence.
We have not overlooked the additional and somewhat broader claim that upon all the facts and circumstances, even though the jury found that the car'was started without the-knowledge or assent of the conductor, it was still a question of fact for the jury as to," whether the defendant was negligent. We think, however, we have sufficiently discussed the question to indicate our view that this contention is not sound and that the learned trial justice was ■right in charging the proposition to which exception was taken.
The judgment accordingly should be affirmed, with costs.
, McLaughlin and Hatch, JJ.,. concurred; Patterson, J., concurred in result; Ingbaham, J., dissented.
Dissenting Opinion
On the 14th day of February, 1898, the plaintiff boarded one of the defendant’s cars at Third avenue and Seventy-third street. Upon the trial she testified that when she got to Twenty-eighth street she signaled to the conductor to stop; that the car came to a full stop at Twenty-seventh street; and that her daughter who was with her got off first. The plaintiff then took hold of the handle of the car and as she was getting off the car started forward and she was thrown to the ground and injured. At the time the car started the conductor was inside of the car, and there was evidence that the usual signal was given, and immediately the car started. .
The court in submitting the case to the jury requested them to specifically answer two questions. The first was, “ Had the plaintiff alighted, with her feet upon the ground, where the car started ? ” The second question was, “ Was th¿ signal bell to start the car rung by the conductor ? ” Thó jury were instructed that if the conductor did not ring the bell they should find a general verdict for the defendant. The jury stated that they were unable to answer the first question, whereupon the court withdrew it and the jury then answered the second question in the negative, and found a general verdict for the defendant, and from the judgment entered upon that verdict the plaintiff appeals. In submitting this question to the jury the learned trial justice said: “If the conductor was standing, as he says, with his hand on one of the west straps, looking out to see whether this lady and her daughter had alighted in safety, and he saw her upon the ground, then under the issue as it is
The question that was submitted to the jury, and which was to control their verdict, was whether or not the conductor rang the bell to start the car, and whether it was in answer to that signal that the motorman started the car. The jury were expressly
The distinction between a cause of action which is based solely upon the negligence of a common carrier in relation to those with whom it has no contractual relation, and one based upon a violation of the carrier’s obligation to its passengers, is well settled. Many cases may be cited to show this distinction. It is illustrated by Carpenter v. Boston & Albany R. R. Co. (97 N. Y. 494). The plaintiff when upon the station platform of the defendant railroad, about to take a train, was knocked down and severely injured by a loaded mail bag thrown from the postal car while the train was in motion, and, as the court said : “ The only answer to his demand for compensation is that the missile was negligently thrown by the person in charge of the mail car, an employee or servant of the United States, and not of the company,” and the defendant was not liable for his act; but it was held, citing Putnam v. Broadway & Seventh Ave. R. R. Co. (55 N. Y. 113), “ that a railroad company was bound tó exercise the utmost vigilance not only in guarding its passengers against careless interference by others, but even against violence, and if in consequence of neglecting this duty he receives injury,
This positive duty having been imposed upon the defendant by virtue of its contract of carriage, to escape liability, where a passenger has not been awarded sufficient time to alight from a train, the defendant must prove that the accident was occasioned by some event over which it had no control, so that the starting of the car while the plaintiff was in the act of alighting was not the act of the defendant’s employees. The fact that the conductor or motorman- in
' There-still remains the question whether, under all the circumstances, there was, as a matter of fact, negligence, and the. whole question, it seems to me, was one for the jury to say whether there was negligence in the method adopted of running the car, the communication of signals and the act of the motorman in starting the car which resulted in the failure of the defendant to give the plaintiff an opportunity to alight, I am, therefore, of the opinion that it was error to charge the jury, that, as a matter of law, the defendant was relieved from all responsibility for the starting of the car by proof that the signal to start was given by a passenger and not by the conductor, and for that reason there must be a new trial:
. Judgment and .order-affirmed, with costs.