32 Barb. 398 | N.Y. Sup. Ct. | 1860
By the Court,
There can he no serious question as to the negligence of the defendants in respect to the occurrence by which the plaintiff was injured. The engine and
The principal question in the case is whether the plaintiff was guilty of negligence. The rule is that a plaintiff cannot recover for an injury which he has sustained in consequence of the negligence of a defendant, if his own negligence contributed to produce the injury. The court of appeals, in a very recent case, Colegrove v. New York and New Haven and N. Y. and Harlem Rail Road Companies, (20 N. Y. Rep. 492,) have intimated that they do not sanction a construction of this rule which requires that the negligence of the party injured, in order to excuse the carrier, must he such as to contribute to produce the collision which occasioned the injury. The judge who makes this intimation does not, however, explain what the court consider to he the true construction ,of the rule, and the effect of the decision or of the opinion
The extent and the measure of the duties and the responsibilities of the carrier and the passenger are quite different. The carrier is bound to the exercise of all possible skill, foresight and care. The passenger is bound to conduct himself with due and ordinary prudence, such as a careful man would use under the circumstances. He is not required to foresee unexpected dangers, nor to speculate upon risks, but he is obliged not to expose himself to danger which is known or may be looked for, in a manner inconsistent with ordinary caution.
In the present case the defendant was upon the platform of the car when the locomotive went off the track. The car upon which he was riding was brought in contact with the baggage car before it, and partly crushed. The plaintiff, who was on the platform, and his son who stood just within the door, were the only persons injured. It is extremely probable that if the plaintiff had not been upon the platform he would not have been injured; certainly he could not' have... been injured so seriously as he was. The judge leffl^fftWvT juiy to say whether it was negligence in the plaintiff unáer the facts disclosed, to stand or ride upon the platform. /<iBiHtytigjjp defendants contend that it was negligence as matfer of law," or at least beyond dispute as a fact, for the plaintj^tS¿rHÍey\ upon the platform, and that for this reason he could not cover and should have been nonsuited. This propositionris rested not merely upon the statute, to which I shall refer presently. It is also contended that independent of the statute,the plaintiff could not recover for an injury which befell him under these circumstances.
It is not conclusive evidence that a person is negligent of his safety in assuming a particular position, that if he had
The essential element of negligence, in such a case, is a disregard of some risk which the passenger ought to anticipate. If a man places himself in such a position that in the ordinary movement and conduct of the train he is exposed to danger, he may justly be said to be negligent of his security, and must take the consequences if he is injured. If he attempts to leave or to get in a train in motion; or if he places his limbs or his body where they may be crushed between two cars in their ordinary movement and jostle, and is hurt in consequence, he is guilty of a fault which is an essential cause, if not the only cause, of his injuries, and although the cars may have been carelessly started or carelessly run, it does not help his case.
If the plaintiff in" this case had been thrown off the platform by a jerk or movement of the train, he would have encountered a danger incident to his position, and although the jerk might have been occasioned by high and unusual" speed or other mismanagement, still, at the most, the fault would have been mutual. But he was injured by a collision between two cars of the train, resulting in the crushing of one of them, which was occasioned by the engine running off the track in consequence of the marked, if not gross negligence of the defendants or their agents. Now to say that it was negligence in the plaintiff to occupy a position in which he had reason
I am therefore of opinion that the fact that the plaintiff was upon the platform of the car when he was injured does not of itself, independent of the statute which I will proceed to consider, bar his recovery of damages for his injuries.
Section 46 of the general rail road' act, (Laws of 1850, ch. 140,) provides that “ in case any passenger shall be injured while on the platform of any car in violation of the printed regulations of the company posted up at the time in a conspicuous place, inside of its passenger cars then in the train, such company shall not be liable for the injury, provided the said company at the time furnished room inside its passenger cars sufficient for the proper accommodation of its passengers.”
The question upon this part of the case is whether the defendants furnished “ sufficient accommodation” within “ the cars” according to the meaning of the statute. Accommodation means more than room. Sufficient accommodation means room enough to receive the passengers, together with a supply of the conveniences requisite for their comfort, customary in the particular mode of travel. In the case of rail road cars it implies not only space enough within the cars to contain the passengers, hut also the means of sitting in the usual manner during the journey.
The judge charged the jury at the trial, substantially, that in order to entitle themselves to the protection of the statute, it was incumbent upon the defendants to furnish not only room in the cars, hut seats, and that if there were no vacant seats the plaintiff was not chargeable with fault, nor exposed to the statute, for remaining on the platform. I think this is the true construction of the statute, and that the instruction given to the jury upon this point was correct.
It was contended that although the first car of the train into which the plaintiff and his son entered was full, yet there were vacant seats in other cars which they might and ought to have taken. The evidence went to show, and the jury had a right to believe, that the train made a short stoppage at the station where the plaintiff got upon jt, and that he was obliged to make some exertions to get his lug
The points which have now been adverted to are sufficient to dispose of all the exceptions in the case which require to be noticed, except one upon a question of evidence, and certain exceptions to the charge, which present a question as to the respective duty of the plaintiff and the defendant’s employees, in regard to seats intended for two persons which were occupied by one, and seats which were filled with luggage.
As to the evidence which was objected to, it is sufficient to
There was evidence given by the defendants that in the car which the plaintiff entered, there was one seat occupied by a person reclining in such a manner as to prevent any other sitting upon it, unless he was removed or made to change his position. There was also evidence that another seat not occupied by passengers, was filled with articles belonging to two persons who sat upon an adjoining seat. The judge told the jury in reference to these seats, that the plain- • tiff was not bound to require a person occupying an entire seat to make room for him, nor to displace him so as to obtain a seat, though the seat were large enough for two persons to occupy when sitting properly. He also said that it was not the duty of a passenger, with reference to the statute to which I have referred, to require persons to displace articles which they have placed on a seat, that he might be seated. To this the defendants excepted. They after-wards requested the judge to charge that a passenger who finds seats occupied by baggage or other articles of other passengers, which prevent him from taking part of it, should, if there be no other vacant seats, apply either to the passengers so encumbering the seats with baggage, or to the conductor to have them removed. The judge declined so to charge and the defendants excepted.
It will be remembered that the question to which this evidence and these instructions are to apply, is upon the duty of the defendants, not that of the plaintiff. The question is not precisely whether the plaintiff was guilty of negligence,
Lott, Emott and Brown, Justices.]
It may be added that the proposition asked for by the defendants went too far. As an abstract or general proposition it is liable to the objection that the conductor might not be in the car, or the passenger might not have an opportunity of applying to him. In reference to the special facts disclosed in this case, it will be seen that the conductor passed the plaintiff, received his fare, and must have noticed, if he was not bound to know, not only that the plaintiff was on the platform, but that it was in his power to furnish him seats within the car.
We think the true rule upon this point is what has now been indicated, and therefore that the judge’s rulings were correct.
The order denying a new trial must be affirmed with costs.