Decker v. Erie R.

This action was brought against the Erie Railroad Company, the respondent, and the Lehigh & New England Railroad Company. Each of these defendants appeared and answered separately. At the close of the plaintiff’s case a motion was made to dismiss the complaint as to the Erie Railroad Company on the ground that there was no legal connection established between that company and the persons whose negligence it was claimed produced the accident. This motion was granted, and from the judgment entered thereon the plaintiff appeals to this court.

The plaintiff was injured at a railroad crossing on the Pine Island Railroad, near Goshen, in October, 1900; and his claim is that no signal was given by the bell or whistle from the train by which he was struck, and no headlight was carried by the engine which struck him. It was stipulated on the trial that the train in question was one belonging to the Lehigh & New England Railroad Company.

The plaintiff introduced in evidence two agreements. The first was a lease between the Goshen & Deckertown Railroad Company and the respondent of the tracks and the property of the first-named road. It was under this lease that the respondent was in possession of the railroad upon which this accident occurred. ' The second was an agreement between the two defendants in this case, entered into in January, 1897, under which the Lehigh Railroad operated trains over the tracks owned by the Goshen & Deckertown Railroad Company. That agreement recited that the Lehigh Company desired to obtain trackage rights from Pine Island to Goshen, and provided for the division of the proceeds of the business done by the trains of that company, which was authorized to run and-operate its passenger and freight trains over the tracks in question. The agreement further provided:

“The railroads and premises included herein shall at all times be maintained and operated during the continuance of this contract by the Brie Company exclusively. The Lehigh Company’s trains shall be run on schedules approved by the Erie Company and shall at all times, while on the premises covered by this contract, be subject to the latter company’s rules, regulations, orders and control. The train crews and engine crews of the Lehigh Company, while on the premises included herein, shall be subject to the exclusive control of the Erie Company. No person shall be employed in the train crews or engine crews, of the Lehigh Company, unless approved by the Erie Company, and any member of the train crews or engine crews of the Lehigh Company may be forbidden to run on the lines included herein, at any time, by the Erie Company.”

The evidence introduced by the plaintiff .was such as to require the question of negligence of the persons in charge of the locomotive by which the plaintiff was struck to be submitted to the jury, and the question presented upon this appeal is, therefore, whether the respondent is liable for the negligent acts of the members of the train or engine crew which inflicted the injury.

This is a case where the doctrine of respondeat superior applies, and it must be held that the Erie Railroad Company is liable for the

These views lead to a reversal of the judgment and a new trial; costs to abide the event.

BARTLETT and JENKS, JJ., concur.

I dissent from the result reached by a majority of my associates.

The plaintiff sued the Erie Railroad Company and the Lehigh & New England Railroad Company for damages occasioned by the negligent running of a train of the Lehigh Company. The complaint alleged that the Erie Company was leasing, controlling, and operating a railroad owned by the Goshen & Deckertown Railroad; that the Lehigh Company, by virtue of an agreement with the Erie Company, used the tracks of the latter company, and ran and operated its engines and trains thereon; that, while the plaintiff was attempting to drive a wagon across the track at a regular highway crossing in Goshen, he was—

“By the carelessness, recklessness, or negligence of the defendants, their agents or employes, struck and run into by an engibe and train of cars which was running for the defendant Lehigh & New England Railroad Company, and in its service, being operated by and under the management of the said defendant; * * * that, before crossing or attempting to cross said rail

road track on said highway as aforesaid, he saw no signal of any kind to warn him of the approach of said- engine and train of cars, and that there was no signal of any kind displayed to him; that he heard no bell rung or whistle blown on the locomotive of said train; and the plaintiff alleges, upon information and belief, that the said defendant Lehigh & New England Railroad Company, its servants or employés, carelessly and recklessly neglected to ring said bell or blow said whistle on said locomotive, or give any signal whatever to warn this plaintiff of the approach of said engine and train of cars, and that the said defendant, its agents or employés, negligently and carelessly omitted to have the headlight upon said engine lighted, and that the said engine and train of cars was carelessly, recklessly, and negligently propelled through said village, and up to, over, and across said highway, in an unlawful and dangerous manner.”

There was evidence- sufficient to require the submission to the jury of the question of the negligence of the engineer, and it was conceded by the plaintiff that the train was a Lehigh train. The only evidence as to the liability of the Erie Company was contained in an agreement between the two companies which authorized the Lehigh Company to use jointly with the Erie Company the said tracks, and to run and operate its freight and passenger trains thereon; the Le-high Company and the Erie Company- receiving each a proportionate. part of the gross receipts. The agreement also contained the following provision:

“The railroads and premises included herein shall at all times be maintained and operated during the continuance of this contract by the Erie Company exclusively. The Lehigh Company’s trains shall be run on schedules approved by the Erie Company and shall at all times, while on the premises covered by this contract, be subject to the latter company’s rules, regulations, orders and control. The train crews and engine crews of the Lehigh Company, while on the premises included herein, shall be subject to the exclusive control of the Erie Company. No person shall be employed in the train crews or engine crews, of the Lehigh Company, unless approved by the Erie Company, and any member of the train crews or engine crews of the Lehigh Company may be forbidden to run on the lines included herein, at any time, by the Erie Company. The Lehigh Company’s trains of all classes shall have the same rights on the premises included herein, as are accorded to similar trains of the Erie Company.”

The court dismissed the complaint as to the Erie Company, and this appeal brings before us the question whether that company is responsible for the negligence of the engineer or other persons running the train in question.

. In Philips v. Northern R. R. of New Jersey, 62 Hun, 233 , 16 N. Y. Supp. 909 , the plaintiff was injured while attempting to board a car. She had purchased a ticket of the defendant, but, at a place outside of the limits of her ticket, was attempting to get on a train which was being run over the defendant’s tracks by the Erie Railroad Company under an agreement between the two companies. The court held that her cause of action arose ex delicto, and not ex contractu, saying:

“The plaintiff’s cause of action rests solely, if it exists at all, upon some negligence on the part of those who were controlling and operating the train from which she received her injuries; and the train was being operated, and was, in its movements, under the control of the Erie Railway Company alone. The lease or contract put in evidence by the defendant, in substance, transfers the control, management, and operation of the trains from the defendant to the Erie Railway Company, at a compensation of sixty-five per cent, of

the gross receipts. * * * As the contracting parties were not to share in profit and loss, hut were to receive simply a fixed share of the gross earnings, the agreement would scarcely constitute a partnership, even at common law. * * * If, then, the plaintiff were, in truth, injured through any negligence of the conductor or bralieman of the train in question, she could not, under any head of the doctrine of respondeat superior, hold the defendant liable. The Erie Railway Company was the only principal responsible in such.a case.”

The difference between the Philips Case and that at bar is the fact that the agreement in the Philips Case contained nothing analogous to the clause above quoted from the agreement between the defendant and the Erie Company, as may be seen from an examination of the record on appeal in the Broolclyn Law Library. But this case was cited and followed in Cain v. Syracuse, B. & N. Y. R. Co., 27 App. Div. 376 , 50 N. Y. Supp. 1 —an action to recover damages for injuries received at a highway crossing through the negligence of the Delaware, Lackawanna & Western Railroad Company, which was running its trains over tracks owned by the defendant, under an agreement between the two, by which the superintendent of the defendant was to arrange time-tables, and the conductors of the Lackawanna Company’s trains were to be under his control and subject to his orders. The defendant’s superintendent had the power to discharge any of the employés of the Lackawanna Company for misconduct upon the defendant’s road. The negligence charged was the failure to ring a bell or give any signal of the approach of the train to the crossing. It was held by the court that such an agreement was authorized by section 78 of the Railroad Law (Laws 1890, p. 1106, c. 565), and that the defendant could lawfully permit the Lackawanna Company to run its trains over its road, and that as the defendant did no unlawful act, or no lawful act in a negligent manner, causing damage to the plaintiff, it was not liable to her. There is a reference by the court to authorities which, in its opinion, justified “the holding that the supervisory right of control retained by the defendant does not aid the plaintiff, since she in no wise traces her injury to a ‘failure to exercise it.’ ” The clause in the agreement between the present defendant and the Erie Company is somewhat broader in language, but its effect upon the liability of the Erie Company to the plaintiff is not greater. It does not make the engineer the agent of the defendant in the details of running the trains of the Lehigh Company, so as to include sounding the whistle or ringing a bell at a crossing, or having the headlight of the engine lighted. In such matters he was the servant of the Lehigh Company, whose train he was running. It is true that the contract provides that while running on the track in question the train and engine crews shall be subject to the exclusive control of the Erie Company, and that no person shall be employed in such capacity except on the approval of the Erie Company, and that any such persons may be forbidden by it to run over such track. But this provision does not render the Erie Company responsible for the details of the methods of running trains. We are not deciding the question whether the Erie Company would be liable to a passenger of the Lehigh Company for an injury occasioned through the employment of an incompetent servant, nor for a cause of action arising on contract, but simply the question as to a liability

For these reasons, the judgment should be affirmed.

WOODWARD, J., concurs.