Dlabola v. Manhattan Railway Co. — 29 N.Y. St. Rep. 149

Majority

p. 149

Ignatz Dlabola, Resp’t, v. The Manhattan Railway Co., App’lt.

(New York Common Pleas, General Term,

Filed February 3, 1890.)

Headnote

1. Railroads—Negligence—Evidence.

In an action for damages caused by a collision on defendant’s road during the blizzard of 1888, the United States signal officer, after giving the details of the storm, was asked, if during the sixteen years of his service there had been such a combination of wind, cold and snow, and if he had known of such a storm within that time. These questions were excluded. Held, no error; that expert evidence was not necessary to convince the jury of the severity of the storm.

2. Same.

Whether there was negligence on the part of defendant, arising from the fact that its cars were overcrowded, so that the brakemen could not get at some of the brakes in time to prevent a collision, and whether collision could have been avoided by their prompt application, was a question of fact for the jury.

3. Same.

The court charged that defendant, in the transportation of passengers, was hound to exercise the very highest degree of care possible. Held, no error.

Appeal from a judgment entered on. tlie verdict of a jury at trial term.

Edward S. Rapallo and Samuel Blythe Rogers, for app’lt; Alfred & Charles Steckler, for resp’t.

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 March, 1888, plaintiff took passage on board of one of defendant’s cars at Seventy-sixth 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 encumbered 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 Seventy-sixth 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. ISTo 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 defendants, and testified

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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.”

Ho motion was made to dismiss the complaint on the ground of want of care on the j>art of the defendant, but a motion for a new trial was made after the verdict, which was denied, and the-defendant could avail himself 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 charge 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 engineer gave the signal to put on the hand brakes 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 defendants, 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 they were bound to use the utmost degree of care possible, were not well taken. Ho 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 suggest, to secure the safety of their passengers. Brown v. N. Y. C. R. R. Co., 34 N. Y., 404 ; Johnson v. H. R. R. R. Co., 20 id., 65 ; Fero v. Buffalo & State Line R. R.

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Co., 22 id., 213; Webber v. Herkimer R. R. Co., 109 id., 314; 15 N. Y. State Rep., 262.

The judgment should, therefore, he affirmed, with costs.

Bischoff. J , concurs.