72 N.Y. 50 | NY | 1878
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *52 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *54 The questions in this case arise upon a motion to dismiss the complaint. The grounds of the motion are somewhat generally expressed, but may be considered as making the proposition, that there was no evidence upon which the court should submit to the jury, whether the plaintiff should recover for the value of the bonds taken from him. The plaintiff now insists that this was not the only question for the jury, and that it was for them also to inquire, whether he did not suffer bodily harm from the assault and battery upon him, and thus sustain damage for which he should have compensation.
This position of the plaintiff cannot be maintained. Plainly, the gist of this action was not for bodily damage, nor was that an incidental part of it kept in consideration as an element of recovery. The complaint does indeed aver that three men entered the car, and with violence and great force assaulted the plaintiff. There is lacking, though, all the other averments which are wont to be made in an action for an assault and battery, either under the common-law forms of pleading, or those which conform to the Code.
The demand for judgment, is for a sum just equal to the averred value of the bonds taken, (though this is not of controlling weight [Tyng v. Com. Warehouse,
We think that it would be going wide from the track of the trial, if we should now render a judgment based upon the notion that damages for the bodily harm received by the plaintiff was any part of the matter in litigation between the parties. The issue contested was upon a graver and far more important matter.
We must treat the action as the court and counsel treated it at the trial, and for aught that appears upon the record, as it was treated at the General Term, as one to recover of the defendants the value of the bonds lost and never restored.
Then the case is this: The plaintiff bought of the defendant the ordinary passage ticket, and paid for it the usual price. By that act the defendant assumed to him the duty of carrying him and his ordinary baggage — that is, his ordinary clothing, articles of personal convenience, usual ornaments, *56 and money for his personal expenses. He carried in his clothing, upon his person, without the knowledge of the defendant, without any notice to it, as matter of fact solely in his own care and custody, a package of negotiable securities of much value. These securities were taken from him, in the car of the defendant, by the violence of men who had no connection with the defendant, and whose presence upon the car was not known to the defendant, though it might have been; and the jury have found that he was not guilty of negligence contributing to his loss, and that the defendant was guilty of negligence in not caring for the protection of the plaintiff from violence while on its car, and that because of that negligence the robbery took place.
If the claim of the plaintiff is to be sustained, it must be held that, from the circumstances of the case, the defendants owed such duty to the plaintiff as that it was an insurer of the safe carriage of his securities, in the mode of carriage adopted by him, and for no greater consideration than the usual price or compensation paid by any passenger on its vehicles, and without knowledge or notice that he had them upon his person.
The mind conversant with legal topics, and wont to look at the consequences of the laying down of a rule of law, and the lengths to which it may logically be carried, does not readily yield assent to that proposition, and inquires upon what principle the liability of the defendant is sought to be established. It is apparent that if the carrier is liable in such case for a loss by robbery, it is liable also for a loss by theft by strangers (seeAbbott v. Bradstreet,
The plaintiff seeks to base the right to recover of the defendant upon the ground that it was bound to protect *59
the passengers in its cars from open invasion, and forcible assault, injury and robbery. We do not need to deny this proposition here. We need not shrink nor stretch the rule laid down in Putnam v. B'way Seventh Ave. R.R. Co. (
The learned counsel for the appellant concedes and contends that the property stolen in this case, is not to be considered as baggage, or to be governed by the rules which have been laid down as to the loss of that and liability therefor. He puts the right to recover upon the duty of the carrier to protect the person of the passenger from violence. Is it logical to say that the defendant is not liable for the loss of these securities as baggage, or as goods, wares and merchandize; that is, that the presence of them in the car in the character of a valuable thing did not create a duty as to them, but that, by the fact of their being on the person of the plaintiff in the car, there arose from the duty to care for his person a duty to care for them? They were nothing else on his person than off of it. They did not become a part of his person, and thus evoke a duty to care for them as a part thereof. They were still property, extraordinarily in the vehicle of the defendants. Nor do we see how the fact, that the loss occurred through violence to the person of the plaintiff from other men, rather than from accident, makes a difference in the case. The defendants are bound to protect the plaintiff from the violence of a railway accident, as well as from the intentional violence of ruffians and rogues. Would it be claimed that if, in the occurrence of a railway accident, these securities had become lost from the person of the plaintiff in any of the many ways that may be imagined, with no other human intervention than was concerned in the accident itself, that the defendant would have been liable for the loss? Such a case has been adjudicated in the negative, after ingenious argument and well-considered *62 opinion. (20 Ohio St. supra.) To hold otherwise, would be to extend the liability of the carrier to a new matter, by reason of the human violence and the injury therefrom; making the character alone of the act create a new duty. The carrier of passengers is liable for harm to their persons from the violence of intruders, when he has been negligent in his duty to protect from it. He is liable for harm to their property, when he has been negligent in his care of it, if confided to his care, either in fact or in law. His negligence is thus the ground of liability in both cases. But the proposition contended for would make the negligence, by which violence comes to the person and property of the passenger from other human beings, far more extensive in its consequences than the negligence by which violence comes to the person and property, or to the property alone, from inanimate things. We see no reason for this.
We have confined our consideration to the ground taken by counsel, with such illustrations and arguments drawn from kindred topics as seemed profitably to bear upon the subject. We have not thought it well to rely upon a rule laid down in Tower v. U. S.R.R. Co. (7 Hill, 47); although there the article lost was a part of a passenger's clothing, and was taken by him into the car of the defendant and kept in his own custody; for the reason that there was in that case no element of violence to the passenger and loss of property thereby, and because the case is also put upon the negligence of the passenger in the care of his property, which we cannot assume in this case.
There are some cases cited by counsel, in which the learned judges in their opinions have used phrases to the effect that the carrier is liable for all the injury, or for any injury
sustained. (Fitch v. Norw. Tr. Co., 6 Blatch., 158;
From our consideration of the case, it is our judgment that the valuable securities carried by the plaintiff were not a part of the property, which he could in his ordinary relation of passenger of the defendant bear about his person at its risk, and under its duty as a carrier to protect him and his necessary, convenient and ornamental, reasonable, personal chattels and money; that for that reason the value of them does not properly enter into an estimate of the damages with which it should be charged, on a recovery by him against it for not protecting him from violence while he was rightfully on its car, it being assumed to be guilty of negligence therein, and he being taken as free from contributory negligence. It was error, then, under the circumstances of this case, to submit any question to the jury. The complaint should have been dismissed. We think that the question we have determined was fairly presented by the motion to dismiss the complaint, on the ground that this "injury and grievance is too remote to charge the defendant with damages," and that, "under all the circumstances of the case, the plaintiff has no legal ground for a recovery" against it.
The order for a new trial must be affirmed, and judgment absolute given for the defendant on the stipulation.
All concur, except CHURCH, Ch. J., absent, and ALLEN, J., not sitting.
Order affirmed and judgment accordingly. *64