141 N.Y.S. 879 | N.Y. App. Div. | 1913
Lead Opinion
The plaintiff’s intestate died as a result of injuries received by the wrecking of one of the defendant’s fast north-bound passenger trains, of which he was engineer, about eight miles north of Hudson. The wreck was occasioned because a door had dropped from one of the cars of a freight train of the defendant going south, and had fallen across the north-bound track. The freight train had passed only a few minutes before the time of the accident. The car was a Lehigh Valley car. It was loaded properly at St. Louis with photographic dry plates. At West Seneca, N. Y., it was noticed that the seal which was put on at St. Louis was gone and a new seal was put on. After the accident an examination of the car in question showed that the socket, a part of the locking device of the door, was gone, and that the wood underneath where the socket had been, looked weather-beaten. A staple which held the chain to which was attached the pin for the hasp was gone. One of the boxes which constituted the load was turned somewhat “ kitty-corner,” otherwise the load was not apparently out of place. Some of the end boards of the car were shoved out of position down near the floor. The car had been several times inspected by the defendant and not found defective.
All questions of negligence on the part of the defendant were removed from the consideration of the jury by the trial justice except such as were embraced within the following questions, which only were submitted to the jury:
(1) “ What caused the accident ? ”
(2) “Was it the duty of the defendant to use ordinary care*188 and prudence to so adjust that load as to not cause the door to bulge out and to be forced from the car ? ”
(3) “Was the defendant negligent in that respect? Did it fail to do anything which in the exercise of reasonable care and forethought it ought to have done ? ”
After the verdict, upon reflection and consideration, the trial justice concluded that he had adopted an “ erroneous criterion of responsibility,” and for that reason he set aside the verdict.
The law seems to be well settled that the loading of a car is not an act pertaining to the duty which the master owes to his servants, and that, therefore, the master is not liable for negligence in the loading of cars. The car is the appliance, and for negligence in furnishing the appliance the master is responsible / the loading of the car is the use of the appliance, and for negligence in the use the master is not liable. (Byrnes v. N. Y., L. E. & W. R. R. Co., 113 N. Y. 251; Bailey v. D. & H. C. Co., 27 App. Div. 305.) While there might arise instances in the loading of open cars where this rule would not apply, it seems to be particularly applicable to the situation in hand. This was a closed car, locked and sealed. It was a car belonging to another railroad. The load was of heavy material in square boxes “laid flat ” upon the bottom of the car and distributed evenly over the car at an average height of not more than three and one-half feet. To have required this defendant under the circumstances to break the seal, open this car and inspect the load would have been an absolute repudiation of the law as it has been established. And to require this railroad and all other railroads in the future to open such cars and all other closed cars and inspect the loads at every station where they may stop long enough to be inspected would be to establish a rule burdensome, oppressive, unreasonable — almost impossible.
The doctrine res ipsa loquitur should have been applied to the circumstances disclosed at the trial. Every element for the correct application of that rule was presented. The relation of the parties never determines whether the rule is applicable. The underlying principle of the rule ignores the relation of the parties. (Griffen v. Manice, 166 N. Y. 188.) It
It is unnecessary here to reason about the res ipsa loquitur doctrine; it has been defined and reasoned upon many times by the highest courts and has become fixed as a rule of circumstantial evidence. The Court of Appeals in Breen v. N. Y. C. & H. R. R. R. Co. (109 N. Y. 297) defines the rule as follows: “ There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as, in the ordinary course of business, does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.” This Lehigh Valley car, the one in question, was under the control of the defendant; doors, such as the one on this car, do not ordinarily fall off when reasonable care is used in securing them; the socket, a part of the locking device of the door, was gone so that the door could not be locked; the wood looked weather-beaten in the place where the socket had been; the staple holding the chain which held the pin for the hasp
It follows that the motion for a nonsuit was properly denied and that the order setting aside the verdict was properly made. Both orders should be affirmed and a new trial granted.
Smith, P. J., concurred; Kellogg, J., concurred in memorandum, in which Lyon, J., concurred; Woodward, J., concurred in memorandum.
Concurrence Opinion
I concur with Mr. Justice Howard.
The only tenable theory of the case was not submitted to the jury. The accident, which was one which does not occur under ordinary circumstances, was due wholly to operations under the control of the defendant, and the simple statement of the facts, supported by evidence, was sufficient to send the case to the jury, after the defendant had had an opportunity to present an explanation, but' the case, from the drawing of
For these reasons concurrence in the affirmance of the order seems to be necessary.
Order affirmed, without costs.
Concurrence Opinion
The fall of the door without any apparent cause is some evidence that it was not properly secured. When the defendant received this foreign-loaded car upon its road, the only duty it owed was a proper inspection to see that it was in suitable condition for service. It would naturally seem that a proper inspection would have disclosed the fact that the door was not properly secured, or was so constructed that in its ordinary use it might fall from the car. There is evidence of an inspection, but the fall of the door unaccounted for is some evidence that there could not have been a proper inspection. The questions are: Was the door properly secured; if not, would a reasonable inspection have disclosed the fact; was there such an inspection ?
Lyon, J., concurred.
