Taylor v. New York Cent. & H. R. R. Co.

The action was brought to recover for damages suffered by the plaintiff because of the negligence of the defendant’s servants. On the 21st of September, 1899, the plaintiff was a passenger upon the defendant’s railroad in a train going from Rochester to Clyde, in the county of Wayne. While he was leaving the train at Clyde station, it was suddenly started without any notice to him, and he was thrown to the ground, and seriously injured; and for the injuries sustained he brings this suit.

No question of fact is presented upon the appeal, and but two exceptions are relied upon by the appellant’s counsel. The first arises upon a refusal of a request to charge. The evidence of the plaintiff tended to show that the train was at rest when he attempted to get off the car; that, when he was upon the second or third step from the car platform, there was a sudden jerk of the train, and he was thrown down and injured. There was evidence on the part of the defendant tending to show that the train, having stopped at the station, had started again, and was actually in motion, before the plaintiff left his seat in the car, and was actually moving when he attempted to alight. In view of that evidence, the defendant’s counsel requested the court to charge that, if the plaintiff knew that the train had started, and was in motion, before he attempted to get off, then he was guilty of contributory negligence, and could not recover. To the refusal of the court to make this charge the defendant excepted. We think that the exception was not well taken. There may be circumstances under which it might be contributory negligence, as a matter of law, fór a passenger to attempt to alight from a moving train; but that cannot always be the case. If the train has just started, and is moving slowly, a prudent man would not hesitate to get off; and, except where the train is moving rapidly, or where the situation of the train or the condition of the man is unusual, the question whether it is contributory negligence to attempt to alight from a moving train must be left to the jury. Such is the rule to be adduced from the case of Distler v. Railroad Co., 151 N. Y. 424 , 45 N. E. 937 , 35 L. R.

A inore serious question arises, however, upon the exception taken to the admission of the testimony of the witness Emery. The train upon which the plaintiff was traveling was an accommodation train. At Newark—two stations before Clyde—a man named Noon had got upon the train. He sat with the plaintiff and the witness Emery in the smoking car. When asked for his fare, there arose some dispute between himself' and the conductor as to the proper amount to be paid, which might possibly have resulted in a little ill feeling on the part of the conductor towards Noon. After passing Lyons, the station before Clyde, Emery went into the rear car of the train, and there had a conversation with the conductor. He was asked what that conversation was, to which an objection was taken that it was incompetent, inadmissible, and that anything the conductor said to Emery in the car next to the smoking car was not competent. The ■objection was overruled, and the witness testified that the conductor asked him whether he was going to get off at Clyde, and then said to him: “You want to be ready to get off. I will get even with those fellows.” We are inclined to think that the exception to this evi-. dence was well taken. While it must be conceded that the general rule is that the declarations of an agent against his principal are only competent when they are made while the agent is actually engaged in the business of the principal, and that the declarations in question do not come within this rule, yet it is claimed that they are competent here, because they constituted a part of the res geste. Whether they do or not is the serious question presented in this case. The plaintiff, however, insists that that ground of incompetency was not raised at the trial, and that, therefore, the defendant is not in a situation to urge it upon this appeal. In this he is clearly mistaken. The objection was taken that the evidence was incompetent, and that raised then, and presents here, every ground of incompetency which could not have been obviated at the trial had special attention been called to it. The fact that they were not a part of the res geste, if that be true, was a reason why they should be held to be incompetent; and, when one makes an objection to evidence which is based upon a right ground, the fact that he does not give every reason why his objection is well taken is of no importance, provided that the ground for the incompetency could not have been obviated. Clearly, in this case, the ground could not have been obviated, and therefore it was not necessary that the reason why the incompetency existed should have been more particularly stated,—if, indeed, we can assume that that was not done, which I think cannot be fairly assumed from the record.

In considering the question whether these declarations are competent, it must be borne in mind that the conductor is no party to the action. WTiat he did is of no importance, except so far as it shows that the defendant, acting through him as its agent, failed in the performance of some duty which it owed the plaintiff, in consequence of which the injury was received, The liability of the defendant arose

Referring to the case of Luby v. Railroad Co., supra, it is quite clear that the declarations of the conductor here were not admissible within the rules there laid down. The fact necessary to be proved was whether the train was prematurely started at the time that the plaintiff was about to step from the car. The act which was the subject of the investigation was that done by the conductor by way of starting the train at that very moment. There can be no doubt that if, just at that moment, the conductor, putting his hand on the signal cord, had stated that he was about to start the train, such declarations would have been competent as illustrative of the act which he was just about to perform. But those declarations would have been admissible as part of the res gestse, because they were actually contemporaneous with the act under investigation, and illustrated the object with which it was done; the object being to accomplish the act which created the liability of the defendant. The case of People v. Davis, 56 N. Y. 95 , is relied upon as sustaining the ruling of the trial court. But in that case the declarations were held not to be competent as part of the res gestse, and it is quite clear to my mind that the rule laid down by Judge Grover was not broad enough to permit the admission of these declarations of the conductor. The case of Railroad Co. v. Greenthall, 23 C. C. A. 100 , 77 Fed. 150 , is also relied upon. But in that case the question was whether the defendant, whose duty it was to use reasonable care to protect its passengers, was liable for the killing of one passenger by another, who was insane. It is quite clear that it was material to show that the employés of the defendant in charge of the train had knowledge of the insanity of the murderer before the act was done, and for that purpose what was said by the conductor shortly before upon that point was clearly material, not as constituting a part of the res gestse, but as showing the actual fact that he had received notice of the condition of affairs. As was said before, it is not difficult to find many cases in other jurisdictions where this evidence would be held competent, but I have not been able to find any case in the state of New York in which evidence of this kind is competent upon the theory that it is part of the res gestae. But the declarations in question were clearly no part of the act of the conductor which subjected the defendant to liability. The act took place after the train had stopped at Clyde, and just before it started. Just how long before then the declarations had been made does not appear, but it is clear that they were made some time before the train reached Clyde while on its way towards it, at a time when the possibility of doing the act had not arisen, and the conditions which authorized the conductor to act had not yet come into existence. They clearly do not come within the rule laid down in Luby v. Railroad Co., supra, to the effect that declarations, to be competent, must constitute the fact to be proved, and must be made during the transaction depending at the very time. They were not a part of the res gestae, therefore, so as to be competent within the rule laid down in Patterson v. Hochster, supra.

McLENNAN and WILLIAMS, JJ., concur.

(dissenting).

On the evening of September 21, 1899, the plaintiff was a passenger upon one of the defendant’s trains, and while attempting to leave the same at the station in the village of Clyde he was thrown violently upon the station platform, in consequence of which he sustained serious personal injuries, including a fractured arm. The evidence upon the part of the plaintiff tended to show that while the plaintiff was about to alight from the lower step of the car the train started with a sudden jerk, which caused him to plunge “headforemost onto the platform”; while, upon the other hand, it was claimed, and there was some evidence which supported the contention, that he deliberately swung himself from the train while it was in motion. There is but a single question in the case of sufficient gravity to require serious consideration from this court, and that arises out of the admission, over the defendant’s objection and exception, of certain declarations made by the conductor of the train to the witness Emery. The undisputed facts of the case are that the plaintiff took passage upon the defendant’s train at Rochester, intending to leave the same at Clyde, which was the village of his residence. At Newark station he was joined by an acquaintance named Timothy J. Noon, and the two occupied seats in the smoking car, as did also the witness Emery. When the conductor came into this car, an altercation arose between him and Noon respecting the latter's fare. It seems that Noon tendered his

In view of all these circumstances, I do not well see how the evidence of the witness Emery could have been properly excluded, and many cases can be cited from the reports of this and other states which will support the ruling of the trial court upon principles somewhat analogous to those above mentioned. Thus, in Matteson v. Railroad Co., 62 Barb. 364 , it was held that the declarations of an agent of the defendant, who was in charge of a gang of men engaged in relaying ties, that there was sufficient time to relay them before the arrival of the next train, were admissible against the company, the same being a part of the res gestae. In Price v. Powell, 3 N. Y. 322 , which was an action against a carrier for damages sustained in consequence of the breakage of some marble “tomb tops,” it was declared that a conversation between the master of the vessel upon which the marble was shipped and the consignee, before the marble had been delivered to the consignee, was competent evidence for the plaintiff. In a Massachusetts case evidence that men working at a gangway were warned shortly before the accident occurred that the plank was unsafe was held admissible in an action for injuries to a person caused by the fall of the gangway. Parker v. Steamboat Co., 109 Mass. 449 . In Railroad Co. v. Jackson, 81 Ind. 19 , which was an action by a passenger to recover damages which he sustained in consequence of a drenching which he received while upon the defendant's train, and in which evidence was given tending to show that the water was cast upon the passenger by the direct procurement of a brakeman of the train, it was held competent to prove a previous declaration of the brakeman of his purpose to do it. And in the federal court of appeals (Eighth circuit) it was held that a conversation between a conductor of a train and a passenger, who expressed fear of a fellow passenger, as to the latter’s sanity, is admissible as part of the res gestse in an action against the railroad company for the killing, shortly after such conversation, of another

“Anything said accompanying the performance of an act, explanatory thereof, or showing its purpose or intention, when material, is competent as a part of the act. * * * The length of time between the act and its subsequent narration by one of the actors I do not regard as material. The question is, did the proposed declaration accompany the act, or was it so connected therewith as to constitute a part of it? If so, it is a part of the res gestae, and competent.”

Clearly, in the present instance the conductor’s declarations indicated and explained the purpose and intent of the principal act which occurred but a few moments later. They were so connected with that act as to constitute a part of it, and consequently, within the rule above stated, they were part of the res gestae, and admissible. Another class of cases is often cited in support of a different doctrine, and of this class Luby v. Railroad Co., 17 N. Y. 131 , and Waldele v. Railroad Co., 95 N. Y. 274 , 47 Am. Rep. 41 , are, perhaps, fair types. But it is to be observed that the declarations in such cases were generally offered merely as proof of some past transaction, and not infrequently—as in the Luby Case—they were declarations which had been made by an employé who was endeavoring thereby to account for what he had done with a manifest purpose of exonerating himself, and casting the blame upon his principals, which it is needless to suggest is quite a different matter from declarations made while in the discharge of a duty, and in anticipation of an event which the employé knew was about to occur. After a careful examination of the question under review as it is presented by the facts of this case, I am convinced that the evidence of the conductor’s declarations was admissible for the purpose for which it was received, and consequently I am constrained to dissent from the opinion of Mr. Justice RTJMSEY.

SPRING, J., concurs.