207 F. 797 | N.D.N.Y. | 1913
The defendants operate railroad trains running into the depot at Troy, N. Y., made up of both ordinary passenger cars and Pullman parlor cars.
It requires no argument to show that the descent from the caito the platform of the station would be more or less difficult and dangerous without such movable step or block. If, then, the defendant companies had recognized this difficulty and this danger and had provided this movable step or stool and' usually used it for the ease and safely of passengers when alighting, and had always provided and placed it for Miss Younglove or when she and others with her alighted at this station, it was fairly a question for the jury whether or not the defendants were guilty of negligence in withdrawing it or failing to use it on the occasion in question. The court charged:
“Now, gentlemen, in the first place, you are to find, and it is a question for you to determine, for you to say, whether or not the defendants here were guilty of negligence on this occasion in question. You are to determine, first, whether this contention to which I have referred is true, correct. Have tlie defendants by a custom, their usual course of business in placing this stool, this temporary movable stool for passengers to alight, have they recognized the necessity for it and that this was a difficult and dangerous place to alight without it, and that it needed it and was required for the safety of passengers? Was that true? If so, and then if they had followed it up by placing*800 that stool usually, so that the plaintiff had learned to rely upon it and she had the right to rely upon it, why then, of course, it would be negligence - on the part of the railroad company to suddenly take it away without warning or notice and without any indication to the plaintiff or travelers accustomed to it that it was gone. I said it would be negligence. What I mean is it would be evidence of negligence, from which you might find negligence on the part of the railroad company. I do not say it would be negligence as matter of law. It would be for you to say. It would justify you in finding negligence.”
Miss Younglove, the plaintiff, testified that when this train stopped at- the Troy station she arose and followed the porter out and down the steps of the car and made the usual step she would have made assuming the temporary or movable step to be in place; that she was looking at the porter, .expecting him to assist her, and did not look to see or observe whether the temporary or movable step was in place or not. In short, the substance of her statement was that she assumed from what had gone before and what had been universally, so far as she was concerned, done on other occasions, and from what the porter did on this occasion as he preceded her with her umbrella, that he ■ had placed this movable or temporary step or stool in its usual place, and that it was there, and that the porter was there to assist her as had been done before, and that her eyes were on the porter, and that she made the step assuming the temporary stepping block or stool to be in place.
“Now as I said, or started to say, of course the defendants contend: First, that they were not negligent at all, not guilty of any negligence; that the placing of this stool was a mere matter of convenience, put there by the porter to aid people in getting on and off; that there was no duty imposed upon them; and they ask the court to charge that its absence was not negligence or that the duty of putting it there was not imposed upon them by law. I will say to you, gentlemen, the placing of a stool there, or a movable step, is not a duty imposed by any statute, so far as I am aware, or by law, but the railroad company was bound to do tho.se things reasonably necessary to make the entrance to the trains and the egress from them reasonably safe, to use all reasonable, well-known appliances that would aid to make that ingress and egress from those cars reasonably safe so far as they could and so far as such appliances were known. That would be a duty imposed, and it is for you to say, gentlemen, whether this was such a difficult and dangerous place as to make it the duty of the railroad company to supply some means, or those means which they had at hand, and whether they had recognized it and so were guilty of negligence in not putting something there, supplying something, either the stool which they had at hand or something else, to make egress from this ear reasonably safe, and so discharge their duty.”
“If, however, the defendants here have satisfied you, by a fair preponderance of evidence, that this plaintiff was guilty of contributory negligence, even if the defendants were negligent, if she was guilty of contributory negligence (negligence which contributed to the injury in any degree), then of course this plaintiff cannot recover. The defendants contend here that even if you say it was their duty to place the stool, and even if you find they were negligent in not placing the stool, still they say that you should-find that this plaintiff was guilty of contributory negligence in that she did not look to see that the stool was not placed, and that she was negligent in not discovering that it was not placed, not looking to see, paying attention to it, and the defendants contend that if she had looked, if she had paid attention, if she had looked down before stepping, she would have seen that the stool was not there and that she wouldn’t have stepped upon the assumption that it was there; that she could either have called for it and have had it placed there or called for assistance, or she could have alighted in such a manner, by jumping or otherwise, as to have avoided all danger. Therefore these defendants contend iliat the ijlaintiff was guilty of contributory negligence (negligence which contributed to this injury), in other words, that it was her own fault in part and that hut for her own fault this accident would not have occurred. Now, gentlemen, as I say, you are to consider, as bearing upon that, the condition of the woman, what had gone before, the custom of the porter, as you find it to be, the different directions in which it was the duty of the woman perhaps to look, the things that she had to see to, what had gone before. Was she negligent in failing to think and to look and to observe that the stool (the stepping stool) was not there? Was she negligent in acting without paying particular attention and looking to that? If she was, if you so find that it was a duty imposed upon her, in view of all the circumstances going before and accompanying that transaction, if you find that that omission contributed to this injury, was contributory negligence on her part, then, of course, gentlemen, she could not recover.”
I think the real question in the case is; Was Miss Younglove, as matter of law, guilty of contributory negligence in failing to look and ascertain that the temporary stepping block had not been placed? Was she, under the circumstances and in view of what had always been done, justified in asstiming the stepping block had been placed and in failing to observe it had not been placed? I think it was a que;~ tion for the jury, under all the facts shown and the circumstances of the case. The porter preceded her as he always had done.. He took her umbrella showing a purpose to assist her as the porter always had done. It was evidently his duty to place the stepping block provided for the purpose, as the porter on all and many occasions when plaintiff was a passenger had done, and it seems to me the plaintiff had the right, in the absence of anything indicating he had not performed the duty, to assume that he had performed that duty on this occasion. She was looking to the porter for assistance; her eyes were on him ; and can it be said as matter of law, she was negligent in not thinking that he might not have placed the stepping block and in failing to look to ascertain whether or not it was in its place as it always had been? The risers of these car steps were 6 inches (that is, it was 6 inches from step to step), and the space of some 16 inches from the last step downward and outward to the platform divided by the temporary stepping block, generally used by the defendant and always used when the plaintiff was a passenger and placed by the servant
In the Hanlon Case, supra, 187 N. Y. 73, 79 N. E. 846, 10 L. R. A. (N. S.) 411, 116 Am. St. Rep. 591, 10 Ann. Cas. 366, the conductor assumed to assist the plaintiff in alighting from the train and negligently withdrew that support, whereby the plaintiff fell and was injured. There, of course, the proffered assistance was immediate and a part of that particular transaction of alighting from the train, but it was assistance volunteered and on which the passenger had the right to rely. The court held that, while the railroad company undero the circumstances was under no obligation to supply the aid of its servant to assist the plaintiff in alighting, the conductor having volunteered his aid, the company was liable for his negligence, “since the passenger had the right to rely upon the conductor’s careful performance of his undertaking.”
In the case now before this court the defendants themselves had provided this temporary stepping block for use in assisting passengers to alight from these cars and had frequently used it with passengers and always when this plaintiff was a passenger, not for her specially, but for all the passengers on that car, and had thus built up confidence in its presence on all occasions. The jury was therefore justified in finding that the defendants were negligent in withdrawing it on this occasion without notice. The jury was justified in finding that this was a somewhat difficult and dangerous place in which to alight from car to platform, and that defendants had recognized it as such and made it safe by providing and using this temporary stepping block or stool.
in Texas & Pacific Railway Co. v. Stewart et al., supra, 228 U. S 357, 33 Sup. Ct. 548, 57 L. Ed. 875, Mrs. Mayer entered the car standing on tracks at or near the station in the nighttime as a passenger. There was no other person in the car, and the tracks and door and steps of the car were insufficiently lighted. After being in the car some little time, Mrs. Mayer became apprehensive that she was or might be ( n the wrong car or train. She said:
“I became fearful that I was on the wrong coach, as no one else entered the same, and I left it to find out as to whether it was the right ear or not. * * * I went to the door and saw that it was all in darkness, and I wanted to go and I held onto the door frame to try to reach the steps of the car with my feet, and in reaching for them I went on too far and slipped and fell to the ground.”
Here is a case where there was in fact no necessity for leaving the car; one where Mrs. Mayer knew the insufficient lighting and was groping in the dark. The court held that the question of her contributory negligence was properly left to the jury, and that its finding should not be disturbed. The general rule is that when the facts are not in dispute, and where but one reasonable inference can be drawn from
In Chicago, etc., R. Co. v. Rowell, 151 U. S. 209, 14 Sup. Ct. 281, 38 L. Ed. 131, there was a notice in the car that passengers on leaving by the forward end should turn to the right, and if it had been obeyed the passenger would have landed on the platform, but if not obeyed, and he turned to the left, the turn led him to. and necessitated his passing across the track. The passenger had not read the notice, turned in the wrong direction, went on the track, and was struck by an engine. Held, the question of contributory' negligence was for the jury.
In Warner v. Baltimore, etc., R. Co., 168 U. S. 339, 345, 18 Sup. Ct. 68, 42 L. Ed. 491, passengers who were to take trains on the east track had to pass the west tracks. On this west track a - train was momentarily expected to arrive. A person who was to take a car on the east track saw the train on that track stop and he started across the west track and was struck by the train. Held, that he had the right to expect that it was safe to do so from the stopping of the train he was to take.
In Chunn v. City & Suburban R. Co., 207 U. S. 302, 28 Sup. Ct. 63, 52 L. Ed. 219, cars ran in opposite directions on different tracks, and there was a clear space of some 3 feet and 6 inches only between the cars when they passed each other at the point in question. Here some planks had been laid and passengers were accustomed to stand there and take the cars and the doors were opened by the defendant for that purpose. It did not appear who laid the planks. The plaintiff stood in this narrow space to take a car on one track and was struck by a rapidly moving car on the other. Standing there the plaintiff could see in both directions a full quarter of a mile. Held, that the question of contributory negligence was for the jury. Had she looked she would have seen the approaching car; and had she observed she would have seen that she was too close to the track on which the car which struck her was running. The court said:
“If upon these facts reasonable men might fairly reach the conclusion that the plaintiff, while herself in the exercise of due care, was injured by the negligence of the defendant, the case should have been submitted to the jury. Warner v. Balt. & O. R. Co., 168 U. S. 339 [18 Sup. Ct. 68, 42 L. Ed. 491].”
If Miss Younglove had looked to see if the stepping block was in position, she undoubtedly’ would have observed its absence. She did not and acted on the assumption that it was in position as it always had been when she was a passenger. It did not occur to her to look, as she had no reason to apprehend its absence. As in the Chunn Case the plaintiff had no reason to apprehend a careless act on the part of the railroad, a deviation from its custom. I do not think an absolute duty rested on her to apprehend the possible absence of the stepping block and to have its possible absence in mind and act accordingly. Its absence was not her fault, and she had no cause or reason to sus
The motion to set aside the verdict and for a new trial must be denied.