6 N.Y.S. 320 | N.Y. Sup. Ct. | 1889
There can be no doubt that the defendants are responsible for the negligence of their engineer in starting the train at the point, and under the circumstances, disclosed by this record. The act evinced a shocking disregard of human life, and it undoubtedly precipitated a number of men into the street below, killing or seriously maiming every one of them. It would only confuse the case to enter into a discussion as to whether the strict relation of carrier and passenger had ceased at the time of this dreadful occurrence. The learned judge at circuit ruled that it had, and that ruling was certainly as favorable to the defendants as they had any right to expect. It absolved them from that high degree of care required in the running of their trains, and in the maintenance of their tracks and operating machinery. It reduced their responsibility to ordinary care. The jury have found, under appropriate instructions, that the defendants failed to exercise this ordinary care, and were guilty of active negligence. They could not well have found otherwise upon the testimony. It clearly appeared that there was a block near the Fourteenth-Street station, and that the train in question, filled with laboring men going to their morning's work, was compelled to halt some 25 or 35 feet north of the station. After a delay of about six or seven minutes the conductor announced to the passengers: “All who are afraid of being late for work get off.” Thereupon a large number—certainly over 50—got out upon the walk, 30 inches wide, provided by the company for its employes, and proceeded quietly—“laughing and talking”—towards the station platform, which was near by. Many of these people had almost reached the platform when the occurrence complained of took place. Some of them had even stepped upon the tracks, for the purpose of mounting the platform in front,—a mode of ascent rendered necessary by the bar of an iron rod which ran across the end of the platform. At this moment the train in front of the station, which immediately caused the block, proceeded. Thereupon the engineer of the train, which the plaintiff and other passengers had just left, without the slightest notice or warning to the crowd of people in front of him, started his
The testimony also showed that the plaintiff was not guilty of contributory negligence. At all events, there was sufficient evidence of its absence to warrant the verdict. The only contributory negligence claimed by the defendants was the bare act of leaving the car upon the conductor’s practical Invitation. That invitation was proved, both by direct and circumstantial evidence. A witness testified that the conductor stood upon the rear platform of the first car, and there made the announcement: “All who are afraid of being late for work get off.” This was plainly addressed to the passengers in the second car, where the plaintiff was, as well as to the passengers in the first. Lyle also testified that the conductor said something to the passengers in the second car, and that they at once got up in a body, and went out. The plaintiff, though speaking English imperfectly, saw a man “with a cap on” and a “blue suit” call out something, and after that everybody got up—he as well as the rest— and went out. This man with the cap on and the blue suit was then standing at the gate, which was open for the exit of all. The case on this head is thus brought within the principle of Filer v. Railway Co., 59 N. Y. 351, and Bucher v. Same, 98 N. Y. 133. In the Filer Case the court said, (Grover, J.:) “The employes upon a train, including brakemen, are in the line of
It is urged, however, that the learned judge erred in charging that the mere fact of leaving the train, under the circumstances disclosed, “was not, in itself, evidence of contributory negligence at all.” This was not error, for the reason that the mere leaving of the car at the suggestion of the conductor did not contribute to the accident. If the plaintiff had fallen directly from the steps of the car, or from the walk as he first touched it, the question presented by this exception would have been up for discussion. We have not overlooked the fact that the court of appeals, in the late case of Hunter v. Railroad Co., 112 N. Y. 371, 19 N. E. Rep. 820, held that an attempt to board a train moving at the rate of four to six miles an hour was negligence as matter of law, although the person making the attempt was directed by the conductor, if he was going on the train, to “jump on.” There, however, as well as in the other cases cited, (Filer and Bucher,) the accident happened in the very act of getting on or off the train. Here the plaintiff and all the other passengers got off with entire safety. They proceeded without difficulty, and seemingly without the slightest danger, towards the station platform. They were not only practically invited to do this, but they were substantially compelled to do so, if they desired to reach their destination at any given or definite time. Bor aught that appeared, when they were told that they might leave the cars, they would have remained just where they were for hours. The utmost that can be fairly claimed by the defendants, under these circumstances, is that the plaintiff and the other passengers in alighting took the risks incident to the locality. They did not assume any other or greater risks; certainly not the risk of the defendant’s negligence. The act of alighting had, therefore, no just relation to the accident, and was in nowise a contribution thereto. The question was whether the plaintiff was injured by the defendant’s negligence while, but for that negligence, safely upon the walk; and whether the natural and ordinary risk incident to his being upon the walk contributed “at all” to the accident. The latter question was fully and fairly submitted to the jury. Indeed the defendant did not except to the part of the charge under consideration until after it had induced the learned j udge specifically to charge the two following propositions: “That the plaintiff took the entire risk from injury from every peril or danger to which he knew, or, in the exercise of ordinary care, he ought to have known, he was exposing himself by leaving a place of safety and going, for his own convenience, with other persons on the plank walk.” And “that if the jury find as a fact that in placing himself upon the planks with a number of other persons the plaintiff omitted to use ordinary
The next question is raised by the following extract from the charge: “It is-contended on the part of the defendant that the proximate cause of this injury was not the starting of the train by the engineer without warning, or without a whistle being blown, but that it was caused by some passenger, who had been upon the train, eitherin attempting to get upon it again, or after he was upon the train, and was lying prone on the platform, striking some of the other passengers, and that three passengers were thereby precipitated into the street. There is nothing here to show that the plaintiff was one of those three passengers, nor is there anything to show that he was in any way affected by that act. ” The defendant excepted to the part italicized. The charge was correct. The uncontradicted testimony of all the defendant’s witnesses placed the passenger referred to, when he is said to have “kicked three people off the walk,” at the rear platform of the first car. The uncontradicted testimony also placed the plaintiff, at the same moment, far in advance of this point. The charge was, therefore, as indeed it was throughout, quite as favorable to the defendants as the facts warranted. Eor was it error to refuse to charge that the defendant owed the plaintiff no active vigilance to guard him from accident. This refusal must be considered with reference to what the learned judge had already charged, namely, that the defendants were only responsible for ordinary care. They certainly owed the plaintiff whatever active vigilance is implied in ordinary care. To that extent he was under their protection. The defendants evidently confuse the rule as to non-liability for passive negligence, (a default in not doing something,) where the injured party is amere licensee, and the commission of some affirmative act of negligence. Remer v. Railroad Co., 48 Hun, 352; Larmore v. Iron Co., 101 N. Y. 391, 4 N. E. Rep. 752. One has no right to carelessly' injure even a mere licensee, and the “active vigilance” which is not due him has reference to some affirmative act of care. See opinion, Earl, J., Nicholson v. Railway Co., 41 N. Y. 533.
It was not error to reject evidence, in substance, that similar conduct on a previous occasion had not been attended by disaster. That was what tire offer amounted to, namely, that culpable negligence had passed once with impunity. . There was abundant evidence of the permanency of the injury, and also of the permanency of the pain and suffering. The testimony was clear and conclusive that the plaintiff had an incurable disease, resulting from, the accident, called “Potts’disease of the spine.” The physicians testified that it would last as long as he lived, and the plaintiff himself testified that from the time of the accident down to the day of trial, a period of 19 months,, he had never been free from pain by day or by night. This testimony clearly justified the refusal to charge that “there was no evidence sufficient to warrant the jury in awarding damages for any future pain.” Such pain was, throughout, part and parcel of the incurable disease,—an inseparable incident thereto,—and future, even life-long, pain seems to be a reasonable sequitur from such facts.
The point that the learned judge erred in charging the jury as follows: “You would also be entitled to take into consideration and to award him a reasonable sum for the certainty of the duration and the continuation of the' effects of this injury, if, upon the evidence, you find that the injuries are likely, with reasonable certainty, to be permanent,” might well have been omitted. What the learned judge meant, and what the jury must have understood him to mean, is apparent. The whole charge indicates that what lie really dwelt upon was “reasonable certainty, ’’ and the word “likely” was one of those petty slips of the tongue which are apt to creep into almost all colloquial speech. What precedes also renders the meaning clear. It is “the cer
There are no other exceptions calling for special consideration. The verdict was just, the trial free from substantial error, and the judgment and order denying the motion for a new trial should be affirmed, with costs. All concur.