33 F. 796 | U.S. Circuit Court for the District of Southern New York | 1888
This suit is brought upon a statute of the state of New York to recover damages for causing the death of the plaintiff’s intestate. Code Civil Rroc. § 1902. It has now been hoard on motion of the defendant for a now trial.
The defendant’s railroad has two tracks. There was also a track turning off southwardly towards Harlem river, at New Rochelle Junction, with a platform between that and the other tracks. Owen Roehrs lived at West New Rochelle, a village on the opposite side of the main tracks, and had a house there, and a commutation ticket entitling him to ride between New Rochelle and New Y ork, but not transferable. New Rochelle Junction was between New Rochelle and New York. It was on the timetables as a station to which tickets were sold, and at which some passenger trains stopped. Passengers going to West New Rochelle on trains stopping at the junction were in the habit of getting off on the side opposite to the platform, and going across the other track, without objection, to a gate, and to that village. The platform was used principally for passengers of the Harlem river branch. The intestate was employed in N ow Y ork, and bought Roehrs’ house at West. New Rochelle, and Roehrs told him that he might have his commutation ticket with the house. He took the ticket and moved into the house, and, on two Saturday evenings, rode from New York to the junction on the train stopping there at that time of the evening, on that commutation ticket, about which the conductor made no question, got off the train with others on the side opposite the platform, and went across the other track to the gate, and to his house. On the next Saturday evening, October 15, 1886, ho took the same train, leaving New York at nine minutes past five, and rode on the commutation ticket, without objection, to the junction, in company with another man going to West New Rochelle. The train arrived at the junction alittle after the evening began to be dark. There was no light on the platform. The name of the station was called out, and the conductor got out on the platform with his lantern. The intestate followed his companion to the rear platform of the ear in which they had been ridings his companion stepped off on the side opposite the platform, and onto the other track, and, seeing a train coming, sprang across, and called to the intestate to stop. The water-boy on the platform of the next ear noticed this call, and, although he did not see the train, spoke to the intestate to come that way. He did not appear to hear or to understand either, and stepped off as the train went by at a speed of 25 or 80 miles an hour, and was struck by, or drawn into, the train, and instantly killed.
The defendant requested that a verdict ho directed in its favor, on the grounds that the intestate ivas not entitled to the rights of a passenger; that there was no evidence of any negligence or wrongful act for which
The principal grounds upon which this motion is urged are the rulings in respect to the commutation ticket, the refusal to direct a verdict for contributory negligence, and the ruling in respect to a safe place to get off the train and leave the road. It is assumed in argument that the presentation of the ticket was itself such a fraud as to make him a trespasser, or an. intruder, and that his motive would not make any difference with its legal effect. There are cases where it is held that the moral intentions make no difference; but, so far as observed, they are not cases where the question of becoming an ordinary passenger was involved alone, but where the question of liability with respect to other relations was also concerned. In Railroad Co. v. Beggs, 85 Ill. 80, the plaintiff was riding on a free pass issued to another person; in Railroad Co. v. Nichols, 8 Kan. 505, the plaintiff was allowed to ride in the baggage car as an express messenger when he was not such; in Railroad Co. v. Moore, 49 Tex. 31, the person was riding on a freight train; so in Eaton v. Railroad Co., 57 N. Y. 382. But here, the intestate was in the passenger car, on a passenger train, claiming to be a passenger on the commutation ticket, and his claim was recognized. The conductor was a witness, and did not claim that he,thought the intestate was Roehrs, nor that he did not know either of them. The conductor had charge of requiring tickets, and implied authority to accept or reject persons as passengers on tickets presented by them. Railway Accident Law, § 215. In Railway Co. v. Harrison, 10 Exch. 376, there was a commutation ticket issued to a newspaper for certain reporters, naming them, and not trans
“The fact of his being a passenger casts a duty on the company to carry him safely. If there liad been fraud on the part of the plaintiff, or he had been taken into the train without defendant’s authority, no such duty would arise.”
The claim of the right to ride, made in good faith, with acquiescence of the conductor in the claim, would seem to amount to a good contract of carriage. Railway Accident Law, § 215. These authorities and considerations appear to warrant submitting the question of good faith, in claiming the right to ride on tho commutation ticket, to the jury.
As the jury may not have found that the intestate made the claim in good faith, the verdict may rest upon the" finding of gross negligence or carelessness in so running the other train past the one he was leaving as to make the leaving it dangerous. That it was the duty of the defendant to provide safe means of exit from the train for passengers, is not disputed. The exit was not safe if so contrived as to lead the passengers into danger. Passengers for West New Rochelle, stopping at this station, could not reach there from the train on the track which this train was on without crossing the other track. They could got off onto the platform, and go past the end of the tyain and cross, or get directly down on tho other side and cross. If they should get off onto the platform, and wait for the train to leave, they would still have to cross; and there was no shelter there or other conveniences for waiting. The train could not pass on the other track without the liability of encountering these passengers, and if it passed while the train was standing, and the passengers alighting and leaving, it would be quite likely to encounter them when attempting to cross by tho rear of the other train, or from its platforms, while the cars would obstruct their view. No whistle was blown to give warning of the approach of the train, which was behind time, and not expected at that hour. To run a train at such high speed past another discharging passengers likely to step directly into its path, without warning, would seem to lie evidence not only of neglect of common care, but of recklessness and gross negligence.
A remaining question, and the one most relied upon in behalf of the defendant, is whether the evidence was such, with reference to the exercise of due care by the intestate, as to warrant submitting it to the jury. The defendant does not complain about the manner of its submission, but insists that there was no question upon it but that the verdict should
The answer to the juror’s inquiry is argued to have been misleading. This argument might be well founded if the answer had been all the instruction there was on the subject. But instructions had been given to take the whole situation, as found to exist, into consideration to determine whether there was any want of due care in taking the way which the intestate took to leave the train. The answer merely reminded the jury that the circumstance inquired about was to be considered with the others. Giving this answer would not appear to make necessary going over the whole again.
Let judgment be entered on the verdict.