Allen v. Dry Dock, East Broadway & Battery Railroad — 19 N.Y. St. Rep. 114

Majority

p. 114

Stewart C. Allen, Resp’t, v. The Dry Dock, East Broadway and Battery Railroad Company, App’lt.

(City Court of New York, General Term,

Filed December 4, 1888.)

Headnote

1. Negligence—Street railway—Oar becoming disabled during trip —Presumption op negligence.

The defendant’s car (commonly called a bob-tail) started on its trip in a roadworthy and good condition. On its route a drunken man attempted to board the car by the rear entrance, but the rear door was kept closed against him by a contrivance connected with the front of the car where the driver stood. Soon thereafter it was found that the door had been displaced by the attempt of the drunken man, and a person endeavoring to get on the car had to go through the front door. Thereafter the plaintiff, boarding the car at the rear entrance, took hold of the handle of the door (the same door at which the drunken man had tried to enter), and, in his efforts to open it, pieces of glass in the cracked window of the car door fell upon his hands inflicting the injury for which the action was brought. The driver did not warn the plaintiff of the condition of the said door. The driver did not know that the glass had been fractured and was in danger of falling out, as he had not examined the door. Held, that the driver might and should have discovered the fractured glass, and either warned the plaintiff against it or have refused to receive him as a passenger upon the car on account of its dangerous condition; that the plaintiff having been injured without any apparent fault of his, the law raised a prima facie presumption of negligence against the defendant.

3. Same—Company liable when driver knows of defect.

There was no conductor on the car. ■ The driver had exclusive charge of it. Held, that he represented the company as to any matters connected with its management and control, and knowledge chargeable to him is, under such circumstances, imputable to the company; that the driver was negligent in not making the examination suggested, and is chargeable with knowledge of all that the required examination would have revealed.

3. Same—When company bound by negligence of driver.

The driver intrusted with the sole charge and control of a car, disabled on the trip to such an extent as to endanger passengers, with full knowledge of the danger, cannot accept passengers on the car without imposing upon the company liability for any damage that is inflicted by reason thereof.

p. 115

4, Evidence.

On the trial of an action, a witness called by the defendant to contradict the plaintiff, did contradict him as to certain material matters. It was competent for the plaintiff to break down his credibility, by proving, from his own lips, that he had been guilty of acts (in this case that he had embezzled money from a former employer) tending to- prove his bad moral character.

On January 14, 1887, one of the defendant’s horse cars (commonly called a bob-tail) started on its trip up town. It was road worthy, and in good condition, when it started.

At the junction of Chatham and Pearl streets, a drunken man attempted to get in the car at the usual place of entrance, which is the rear end. The driver determined to keep him out, and, therefore, kept the door closed by some contrivance connected with the brake of the car which is in front where the driver stands. The drunken man pulled at the door until he tired in his efforts to open it, and after abandoning the attempt, left the car at Catharine street. When the car reached Pitt street, a lady attempted to get in at the rear end of the car, but could not open the door, which had, by the vigorous jerking, become displaced from the track on which it moved. The lady, at the request of the driver, then got in by the front door of the car. At the corner of Columbia and Grand streets, the plaintiff boarded the car at the appropriate-entrance, the rear end, took hold of the handle of the door, and in his effort to open it, pieces of glass in a cracked window of the car fell down upon his left thumb, causing it to bleed, and making it necessary to employ medical aid. The physician who attended the plaintiff testified that the injury consisted of a sharp penetrating wound on the thumb, going through the skin and all the tissues until it reached the bone.

The witness thought it severed a tendon at that point, and that the plaintiff would never have the use of the thumb again. The evidence does not clearly show how the window pane became-cracked, and the only way of accounting for the fact is that the drunken man in his mad effort to open the door fractured the glass so that when the plaintiff attempted to open the door the broken glass fell upon his thumb and inflicted the injury of which he complains.

The driver testified that he knew the door was out of order when the plaintiff attempted to enter the car, and that he in consequence- told the plaintiff not to attempt to-open the rear door, as it was out of order and could .not be opened further than it was. The plaintiff denied that the-driver made any such statement or gave any such intimation The jury believed the plaintiff, and having found in his favor, we accept his version of the affair as true. The jury at the trial had before Mr. Justice Bkowne awarded

p. 116

the plaintiff $700 damages, and from the judgment entered on this verdict, the defendant appeals.

Robinson, Scribner & Bright, for app’lt; A. J. Dittenhoefer, for resp’t.

A common carrier of passengers is not responsible for injuries suffered by them from any cause other than the negligence of persons employed by it. Shear-man & Eedfield Neg. (4th ed.), § 494. The rule that such carriers are bound to provide safe vehicles, and are liable for the consequence of defects irrespective of the question of negligence (Alden v. New York Central R. R. Co., 26 N. Y., 102 ; Hegeman v. Western R. R. Cor., 13 id., 9), having been modified by subsequent cases (Carroll v. Staten Island R. R. Co., 58 N. Y., 138 ; McPadden v. New York Central R. R. Co., 44 id., 478), wherein the doctrine laid down in Christie v. Griggs (2 Camp., 79), that a carrier of passengers is not an insurer of their safety was reaffirmed.

The plaintiff’s action is therefore founded on the defendant’s negligence, and unless that feature of the case has been established the action must fail.

A carrier of passenger is not required to be gifted with prescience, nor is it bound to know or chargeable for not knowing things which ordinary skill and foresight would not have revealed, and there was no negligence established in this case, unless the act of the driver in receiving the plaintiff upon the defendant’s car in its disabled condition imputes negligence to it. The car was roadworthy and free from all defects, at the time it commenced the journey, on the trip in question, and this is enough ordinarily to exempt the carrier from responsibility (Burns v. Cork and B. R. R. Co., 13 Irish C. L., 543), but the rule to he reasonable must have reference to the journey of the passenger as well as the trip of the car. The plaintiff’s journey commenced at the corner of Columbia and Grand streets, and he was injured at the beginning of it by reason of the disabled condition of the car at that time.

True, the executive officers of the defendant did not know of the injury, nor had its car inspectors any opportunity to learn of it, for their examinations are made only after the cars reach the depot. The driver of the car, however, knew that it was disabled, for he at once attributed the injury to the drunken man who boarded the car, and he cautioned the lady who attempted to enter the car at Pitt street about the injury. The fact that he did not know that the window pane had been fractured, and was in danger of falling out upon anyone attempting to open the door, is owing to his indifference as to the extent of the injury done, for if he had gone to the rear of the car a casual look would at once have apprised 'him of the true situation and the dangers incident from it. The driver was negligent in not making the examination suggested, and is

p. 117

chargeable with knowledge of all that the required examination would have revealed. There being no conductor on the car, the driver had exclusive charge of it. He represented the company as to any matter connected with its management and control (Wood’s Railway Law, 449 to 452, 1202), and knowledge chargeable to him is, under such circumstances, imputable to it. In the nature of things, corporations must act solely through agents, and that their powers and duties may differ in degree should make no difference in so far as duties and liabilities to passengers are concerned. The driver, during the trip, was the sole agent and representative of the corporation, and its authority within the scope of his duties was, for the time being, vested in him.

The driver might, and should, have discovered the fractured glass, and either warned the plaintiff against it or have refused to receive him as a passenger upon the car on account of its dangerous condition. He did neither (according to the finding of the jury). The plaintiff having been injured without any apparent fault of his, the law raises a prima facie presumption of negligence against the defendant. Christie v. Griggs, 2 Camp., 79; Dawson v. Manchester, etc., R. R. Co., 5 Law Times (N. S.), 682.

The defendant undertook to rebut this legal presumption, but the evidence by which it sought to'do it proves that its driver was negligent in respect to acts for which it is answerable to the injured party. The jury found that the injuries complained of were the result of negligence on the part of the defendant, and that the plaintiff was free from fault. The evidence justified this finding, and as the damages are not excessive we find no reason for disturbing the verdict on the facts.

The exceptions will be considered in order:

First. Was there a conductor on the car ? This question was proper as the answer called for merely described the situation under which the car was run. Burgess v. N. Y. Cent. R. R. Co., 20 Week. Dig., 249; Houghkirk v. Prest., etc., 92 N. Y., 219 , 227; Sawyer v. City of Amsterdam, 20 Abb. N. C.; 227,-229: The testimony proved a fact not irrelevant. It was descriptive only. It did not prove negligence, however, and the defendant might have asked the trial judge to so charge, but no such request was made. It certainly proved that the driver was the sole representative of. the defendant in charge of the car.

Second. “Were there any steps in front?” This question, like the last, was descriptive merely, and was for a similar reason admissible.

Third. “ Q. (to defendant’s driver on cross-examination)

p. 118

Is it' not a fact that you left Ridley’s with money belonging to them?” A. Yes, sir; I did.

“Q. Moneys that you had collected-for them. A. Yes, sir.”

The defendant claims that a witness can be impeached in only three ways. 1. By disproving the facts stated- by him. 2. By general evidence affecting his credit. 3. By proving that the witness has made statements out of court contrary to what he has testified at the trial (citing 1 Greenleaf’s Ev., §§ 161, 162). We think the evidence was properly received. It did not ask as to an accusation but a fact. The distinction is obvious. Thus, while you cannot ask a witness whether he has been arrested (Wright v. The People, 1 N. Y. Crim. R., 162 ) or indicted (Ryan v. The People, 79 N. Y., 599 ), or expelled from the fire department (Nolan v. Brooklyn City, etc., R. R. Co., 87 N. Y., 68 ), you can ask him whether he was not guilty of a particular offense, for as the court of appeals said in The People v. Irving (95 N. Y., at p, 544), “Mere charges or accusations, or even indictments, may not so be inquired into since they are consistent with innocence, and may exist without moral delinquency, but where the witness is called upon to confess or deny his guilt of a crime, his answer, if in the affirmative, tends to impair the credit of the witness, by its tendency to establish a bad moral character. The party putting such a collateral question is concluded by the answer of the witness, and if he denies the offense, cannot be contradicted by other evidence. Conley v. Meeker, 85 N. Y., 618 .

The witness (the defendant’s driver) testified that he had been discharged from Ridley’s, and that he had left with moneys which he had collected for them. He had been in their employ as a driver. The unexplained failure to pay over these moneys constituted embezzlement under the statute (3 R. S., 6th ed., p. 952, § 73), and is made larceny by the Penal Code (§ 528).

The driver had been called by the defendant to contradict the plaintiff, and did contradict him as to certain material matters, and it was competent for the plaintiff to break down his credibility by proof from his own lips, that he had been guilty of acts tending to prove his bad moral character. In The People v. Casey (72 N. Y., at p. 398), the prisoner on his trial for murder, was called as a witness-on his own behalf, and on cross-examination was asked as to other acts of wrong doing committed by him. In sustaining the trial judge, the court of appeals said, “when a prisoner offers himself as a witness on his own behalf, he is subject to the same rules of cross-examination as any other witness. He may be asked questions disclosing his

p. 119

past life and conduct, and thus impair his credibility. Such questions may tend to show that he has before been guilty of the same crime as that for which he is put on trial; but they are not on that account incompetent. * * * The extent to which such an examination may go to test the witness’ credibility is largely in the discretion of the court.” We think the right was not abused in the present instance.

Fourth. Q. (to defendant’s driver) Was it not one of your duties, as the driver of this company, under the rules of the company, not to take any passengers on board a car, if it is damaged or injured en route % The witness answered. If it was broken in any way so as to hurt any one, then we were supposed not to take any passengers. This question, particularly in view of the answer made, is unobjectionable, for the witness merely stated the correct rule of law on the subject, irrespective of any rules of the company. No written or printed rules were referred to or attempted to be proved.

The other exceptions taken relate to the charge of the learned trial judge.

The defendant’s counsel requested the trial judge to charge that “ if the car was in good order at the beginning of the trip, then the defendant was not guilty of any negligence or omission to provide a road-worthy vehicle.” The trial judge properly refused to charge in these words. The request as applied to the peculiar circumstances of this case is for reasons before discusssed, and which need not be repeated, inapplicable to this case.

The defendant’s counsel excepted to the remark of the trial judge, first, that the jury might take into consideration the absence of a conductor on the car; second, and, that if the driver received passengers after notice of. the defect in the door of the car, that the company would be chargeable with notice, and that there would be negligence on the part of the company after that.” The reference by the trial judge to the absence of a conductor, was casual and descriptive only, and did not carry with it the idea that the absence of a conductor was to be regarded by the jury as negligence per se or as any evidence proving negligence. If the defendant had desired a clearer ruling on this subject, it might have requested the judge to charge that the absence of a conductor was not evidence of. negligence, and if the trial judge had refused the request, the error might have been fatal to the plaintiff’s case, Lamline v. Houston, etc., R. R. Co., 6 St. R., 248; Brooklyn R. R. Co. v. City of Brooklyn, 38 Hun, 413 , but no such request was made and on such error committed. As to the second branch of the exception under consideration, the trial judge said “ the

p. 120

driver is in charge of the car in question, and if he observes any defect in the car, which renders it dangerous for persons to occupy it, the company is chargeable with notice if he permits passengers to enter and ride upon it after he has knowledge of such defect.” If we are right in the conclusion we have arrived at, in respect to the driver’s powers and duties under the circumstances (a subject before discussed) this instruction was correct.

To hold the converse of the proposition to be true would be to decide that a driver entrusted with the sole charge and control of a car disabled on the trip to such an extent as to endanger passengers, might nevertheless, with full knowledge of the danger, accept them on the car without imposing any responsibility whatever upon the company for the consequences. We cannot subscribe to so broad and dangerous a doctrine.

Upon the entire case, we think the judgment should be affirmed with costs.

Ehrlich, J., concurs.