Grimshaw v. Lake Shore & Michigan Southern Railway Co.

The tracks of the Erie Bail-road Company cross the tracks of the defendant, the Lake Shore and Michigan Southern Bailway Company, at a point in the city of Buffalo. At the time of the accident which gave rise to this action, in December, 1907, the Wabash Bailroad Company operated some of its trains over these tracks of the Erie. A Wabash engine thereon attempted to cross the point of intersection when it was struck by one of the defendant’s freight trains running along one of the intersecting tracks. The collision resulted in the death of the plaintiff’s intestate, Thomas Cole, an employee in the office of the master mechanic of the Erie Bailroad Company at East Buffalo, who was riding on the locomotive. This action was brought to charge the defendant with liability for negligence in the operation of its freight train at the crossing. The answer was a general denial. The plaintiff recovered a small verdict, the judgment upon which has been affirmed by the Appellate Division, one of the justices dissenting on the ground that the plaintiff’s intestate was a trespasser upon the Wabash engine at the time of the accident and the' defendant could be held liable only in case it caused his death willfully, wantonly or recklessly, of which there was no evidence. The trial judge charged the" jury that the defendant owed to every one on that engine ordinary care to keep him from being injured, and it must be assumed that the verdict was based upon a finding of the absence of such ordinary care.

The plaintiff’s intestate was evidently on the locomotive with the sanction of the engineer in charge. He had

We are referred to the case of Eaton v. Del., L. & W. R. R. Co. ( 57 N. Y. 382 , 395) as an authority precisely in point to show that the plaintiff’s intestate was not lawfully upon the engine at the time when he was killed. That case was decided by the Commission of Appeals in 1874, and the decision was not unanimous. There was an able dissenting opinion by Commissioner Earl, afterward chief judge of this court. The plaintiff had been invited by the conductor of a coal train belonging to the defendant to ride thereon. The conductor informed him that the company was in want of brakemen and invited him to ride back to a specified station with a view to obtaining employment as a brakeman. There was a printed regulation of the company forbidding passengers to ride upon coal trains, but it did not appear that the plaintiff knew of this regulation or had any reason to suppose that the conductor was doing an unauthorized

It may also be observed in regard to the Eaton case that the members of the Commission of Appeals who united in the prevailing opinion expressly refrained from declaring that the plaintiff was a trespasser. (Eaton v. Del., L. & W. R. R. Co. supra, p. 391.)

While permission to ride on a freight train or locomotive given by subordinate agents such as the conductor or engineer will not ordinarily suffice to constitute a person to whom permission is thus given a passenger, yet the weight of authority is in favor of the proposition that the consent of such employee is sufficient to require the exer

The tendency of the courts is to hold that a person riding upon a train other than a passenger train with the consent of those in charge, although against the rules of the company of which he is ignorant, is to be deemed a licensee rather than a trespasser. (See Lemasters v. Southern Pacific Co., 131 Cal. 105 .)

The case upon which the appellant chiefly relies is Wickenburg v. Minneapolis, etc., R. R. Co. ( 94 Minn. 276 ). There it appeared that the tracks of the defendant company and the Chicago, St. Paul, Minneapolis and Omaha Railroad Company intersect at Turtle lake in the state of Wisconsin. In consequence of the negligence of the defendant one of its trains collided at the crossing with a train on the Omaha road, seriously injuring the plaintiff, who was a boy twelve years old, and who had boarded the Omaha train when it stopped before passing the crossing for the purpose of riding to a neighboring station. He was riding upon one of the cars or clinging to its steps in violation of a Wisconsin statute. His presence was unknown to the Omaha Company or any of its employees in charge of the train. The Supreme Court of Minnesota held that the obligation of the defendant to exercise reasonable care to avoid a collision with the Omaha train or not to injure persons lawfully riding thereon did not extend to the plaintiff and that he could not recover.

It is to be observed that this was the case of a trespasser pure and simple and not a licensee; for, as has been said, no one on the Omaha. train sanctioned the plaintiff’s presence thereon or was aware of it. The Omaha Company, therefore, owed him no duty until it discovered him in a position of peril, and was only liable to him for a willful or wanton injury.

That this decision, however, was not intended to go so far as to pass upon the rights of a licensee under similar

The suggestion is made in behalf of the appellant that the deceased was on the engine in violation of express law, and was even guilty of a crime in being there at the time when he was killed in consequence of the defendant’s negligence. (Penal Law, § 1990.) The prohibition of the Penal Law, however, against riding on any railroad company’s engine or freight or wood car, without authority or permission of the proper officers of the company, does not extend to a case where permission is given by “ the person in charge of said car or engine.” It is manifestly unreasonable to assume that Cole was on the engine without the permission of the engineer, in view of the evidence which has been mentioned as to his practice of riding thereon for two months before his death.

The concrete rule of law which we deem applicable to such a collision as occurred in this case is that the defendant whose freight train ran into the Wabash engine at the crossing was bound to exercise ordinary care not to injure any person riding upon that engine whose presence thereon was not of such a character as to constitute him a wrongdoer. Further than that, the status of the injured person toward the corporation on whose locomotive he was riding was immaterial to the company operating the

It cannot be held that the deceased was guilty of contributory negligence as matter of law. The cases which impute contributory .negligence to one who takes a comparatively perilous place upon a locomotive instead of riding in a car provided for passengers have no application here where there is nothing to show that the peril to the deceased was in any wise augmented by any act of his in choosing a dangerous rather than a safe place in which to ride. The locomotive on the occasion of the collision was proceeding alone.

Cullen, Oh. J., Gray, Haight, Vann, Werner and Chase, JJ., concur.

Judgment affirmed.