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Dlabola v. Manhattan Railway Co.

15 Daly (N.Y.) 470 Court N.Y.C.P. Decision date 1890-02-03 English

Delivered by Bookstaver, J.

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p. 470
Ignatz Dlabola, Respondent, against The Manhattan Railway Company, Appellant.
(Decided February 3d, 1890.

Headnote

In an action to recover for injuries to plaintiff while a passenger on defendant’s elevated railroad, caused by a collision during the great snow and wind storm of March 12th, 1888, the exclusion of a question to a witness, a United States signal service officer, as to whether, during his service as such, he had known such a storm, is no ground of reversal, the details of the storm having been given in figures by him, and its severity being well known to the jurors.
It appeared at the trial that the steam brakes on the cars, being clogged with snow and ice, would not check their speed, and that the train was so crowded that, when the engineer gave the signal for hand brakes, the brakeman could not get at the brakes in time to check the speed so as to avoid a collision. Held, that the question of defendant’s negligence under the circumstances was for the jury.
Appeal from a judgment of this court entered upon the verdict of a jury.
The facts are stated in the opinion.
Edward S. Rapallo, and Samuel Blythe Rogers, for appellant.
Alfred & Charles Steepler, for respondent.

This was an action brought for the recovery of damages sustained by plaintiff by reason of the alleged carelessness and negligence of the defendant. On the 12th of March, 1888, plaintiff tookpassage on board of one of defendant’s cars at 76th Street and Third Avenue, to be transported down town. The morning was an exceedingly stormy one, and the tracks of the road were to a certain extent incumbered with snow, so that the trains ran at irregular intervals and with frequent stoppages. The train upon which the plaintiff took passage, after leaving the station at 76 th

p. 471
Street, became blocked by the snow, and while so standing, another train of five cars drawn by two engines ran into and collided with the train upon which the plaintiff was, and he was thrown down with considerable force and injured about his head, leg, and foot. No negligence was imputed to the plaintiff, but it was claimed on behalf of the defendant that the collision was unavoidable on account of the state of the weather and of the tracks caused by such conditions.

Sergeant Dunn, the United States signal service observer in this city, was called as a witness by the defendant, and testified as to the temperature, snow-fall, velocity of the wind, and the other circumstances connected with the storm. He also testified that he. had been such officer for sixteen years, and was thereupon asked the following question: “ In that, whole sixteen years did you ever know of a storm involving such a combination of snow, wind, and cold together as the blizzard ? ” and also the question: “ During the whole time when you have been a signal officer here, was there such a disturbance of the elements with combination of wind and snow, as the period beginning "with the night of the 11th of March and extending through to the 13th? ” Both of these questions were objected to by the plaintiff’s counsel, and the court sustained the objection. The appellants contend that this was error. The details of this storm and its severity had already been given in figures by the witness, and doubtless all the jurors had a very distinct recollection of the circumstances of that storm; expert testimony was not needed to convince them of its severity. That seems to have been conceded throughout the trial, for in the course of his charge the judge says: “ When these extraordinary storms occur, we* expect men to do the very best they can, but sometimes the storm is altogether beyond human control; you cannot provide an agency that can resist the powers of nature, and when an accident occurs solely for the reason that the powers of nature have overmastered the powers of man, the railroad company is not to be held responsible.

No motion was made to dismiss the complaint on the question of want of care on the' part of the defendant, but a

p. 472
motion for a new trial was made after the verdict, which was denied, and the defendant could avail itself of this on this appeal were there grounds for it in the circumstances of the case. But we have looked over the testimony and also over the chai'ge of the learned judge who tried the case, and we do not think that he would have been justified in dismissing the complaint.

There was practically but one ground on which the plaintiff could claim negligence on the part of the defendant, and that was that the cars were so crowded that when the engineers gave the signal to put on the handbrakes the trainmen could not get at one or more of these brakes in time to do so before the collision, and had they been applied promptly, it could have been avoided. Whether there was any negligence on the part of the defendant arising from this state of facts, was a question properly submitted to the jury under a charge so fair that, the appellant did not except to it in this respect, and their verdict was not so clearly against evidence that we feel warranted in disturbing it.

The exceptions to the charge that the defendant was bound to exercise in the transportation of its passengers the very highest degree of care possible, and that it was bound to use the utmost degree of care possible, were not well taken. No rule is better settled than that in respect to carrying passengers a railroad company is bound to exercise all the care and skill which human prudence and foresight can sug-, gest, to secure the safety of its passengers (Brown v. New York Cent. & H. R. Co., 34 N. Y. 404 ; Johnson v. Hudson River R. Co., 20 N. Y. 65 ; Fero v. Buffalo S. L. R. Co., 22 N. Y. 213 : Weber v. Herkimer R. Co., 109 N. Y. 314 ).

The judgment should therefore be affirmed,, with costs.

Bischoff, J., concurred.

Judgment affirmed, with costs.

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