49 N.Y.S. 510 | N.Y. App. Div. | 1898
■ This action was begun March 5, 1897, to recover damages for the death of the plaintiff’s intestate, her husband, caused, it is alleged, by the negligence of the defendant.. It was brought to trial November 10,1897, at a Trial Term of this court, which dismissed the complaint on the plaintiff’s opening, with costs. The plaintiff excepted to the decision, and her exception was ordered to be heard by this court in the first instance.
The following facts were stated by the plaintiff’s counsel in his opening, and many of them are alleged in the complaint: George H. Wells, the intestate, resided at Le Roy, N. Y., and on the 4th of January, 1897, purchased a ticket of the defendant entitling him to a passage on its trains from Le Roy to Rochester, N. Y., and return. He reached Rochester at about two o’clock in the afternoon of the day mentioned, and after transacting some business in the city returned to defendant’s passenger station at Rochester at about four o’clock in the afternoon for the purpose of "taking a train to Le Roy, which left the Rochester station at five o’clock- and twenty minutes in the afternoon. He took a seat in the waiting room for passengers, having his ticket entitling him to ride from Rochester to Le Roy in his possession. Before the five-twenty p. m. train came the intestate showed the gateman his ticket and stated where he wished to go, and the gateman told him to sit down and that when his train arrived he would notify him. While sitting in the waiting room it was seen
If the foregoing facts, which were stated in the opening, are established on the trial and in nowise explained, they are sufficient to constitute a cause of action.
The relation of carrier and passenger existed between Mr. Wells and the defendant. (Gordon v. Grand Street & Newtown R. R. Co., 40 Barb. 546; Weston v. N. Y. Elevated R. R. Co., 10 J. & S. 156; affd., 73 N. Y. 595; Grimes v. Pennsylvania Co., 36 Fed. Rep. 72; Warren v. Fitchburg R. R. Co., 8 Allen [Mass.], 227; Wood Ry. Law, § 298 ; Elliott R. R. Law, 2460 ; 5 Am. & Eng. Ency. of Law [2d ed.] 488 et seq.)
Mr. Wells being a passenger, the defendant owed him an active duty and was bound to exercise due diligence to care for his safety. A greater duty is imposed upon a carrier of passengers to look out for those incapable of caring for themselves by reason of extreme age, youth or illness than for passengers competent to care for themselves. Whether the condition of Mr. Wells was such that the defendant might have refused to receive him as a passenger is not
The plaintiff’s exception should be sustained and a new trial granted, with costs to abide the event.
All concurred.
Plaintiff’s exceptions sustained and a new trial ordered, with costs to the plaintiff to abide the event. •