Bellman v. New York Central & Hudson River Railroad

The plaintiff in alighting from one of the defendant’s passenger cars fell through the openings in a bridge over a highway upon which the ear was standing and received severe injuries to his person. He claims that, at that time, he was a passenger on the defendant’s road and rightfully in the car and. that the injuries which he received were caused by the negligence and carelessness of the conductor in charge of the car. The evidence bearing on the questions of fact, which the plaintiff was required under the pleadings to maintain, is undisputed. If from the proofs the jury were justified in reaching the con~ elusion, that the conductor was guilty of negligence which

The facts may be briefly stated. The village of Brockport is about twenty miles west of Rochester and the line of the defendant’s road passes through both places. The plaintiff resides in Rochester and is a member of a military organization whose head-quarters were in that city where most of the other members also reside. This company had arranged to give a-public entertainment in Brockport. The members were sufficient to fill one ordinary passenger car. One of their number, Mr. Yost, acting as committee man for all, engaged of the defendant passage for all the members of the company from Rochester to Brockport and return. The fare paid was the regular fare for each member of the company, and before leaving Rochester the same was paid and a return ticket was delivered to Mr. Yost for each member of the company including the plaintiff. A car was assigned to the company in which they were carried to Brockport in the forenoon of the day on which the exhibition was to be given. On arriving in Brockport the car was detached from the train and run upon a switch. After the exhibition was over, the members of the company were carried back to Rochester in the same car, which was attached to a passing freight train which left Brockport after midnight. At the latter place there is a depot with the usual safe and convenient accommodations, with waiting'rooms for passengers, and is located about 230 feet east of Main-street, over' which the railroad crosses on a bridge some twelve feet high. ■ In front of the depot the main track passes some twelve feet from the platform. To the south of the main track and seven feet therefrom, there is a side track which crosses the bridge west of the depot and intersects with the main track. In the morning after the members of the company left the car it was switched upon a side track and run to the west of the depot so that the west end of the car for some three or four feet of its length rested upon the trestle of the bridge. There were openings in the bridge at or near the end of the car and no guards in that section of the south side of the bridge, and the outer space of the car was very near, if it did not over-lap, the side of the bridge. The members of the company were guests at a hotel on Main-street, north of the bridge and near the depot, and the exhibition given by them was in a room in the village south of the bridge and the railroad tracks. As early as 10 o’clock in the evening the car was lighted and the doors unlocked, without any person on the part of the railroad company being present and in charge of the same. The depot building was lighted, the waiting rooms open

On the question whether the plaintiff and his companions were permitted by the defendant to occupy the car while it stood upon the switch before the arrival of the freight train, Mr. Yost, the committee man for the company, testified in substance as follows: “ that when I contracted for the transportation it was arranged that the car was to lay there, at Brockport, for us and as soon as we were ready to move we were to take the car; Smith, the agent for the company, said, if I remember right, that the car was at our service and he would telegraph to the baggage man or whoever had charge of the car there at Brockport to hitch us on to the first train that would bring us back to Rochester; he said that there would be a man there who would tell us whenever we were ready to return^ or we should report ourselves to the authority there and that he did notify the agent at the depot that they were ready to move.”

The defendant did not give any evidence upon the trial except as to the nature and extent of the plaintiff’s injuries. I think from this evidence, the jury were justified in the facts that the conductor was guilty of improper conduct and negli

The evidence fairly established, and such was the opinion of the trial judge and he so instructed the jury, that the passenger car as it stood upon the side track was outside of the depot grounds. The legal questions presented will be examined as if such was the fact. In determining whether the verdict should stand or not, it may be assumed that the relation of carrier and passenger did not exist at the time the conductor came to the passenger car and took the control and management of the same. But the moment he ordered the car to be moved, I think it may be reasonably and fairly held as matter of law that the relation of carrier and passenger was resumed, as the company intended to carry the persons holding tickets back to Rochester in that car. The conductor made no request that the car be vacated by the passengers and no objection was made to their remaining in their seats while the ear was being moved so that it could be attached to the train. The plaintiff became a passenger as soon as he came to the depot building for the purpose of being carried to his home in Rochester, for which place he had a ticket, and was entitled to the care and protection which law requires carriers of persons to bestow upon their patrons. The question is not whether plaintiff took a seat in the car with or without the consent of the defendant. But the inquiry is, whether at the time he received his injury the conductor had taken charge of the car and the plaintiff as a passenger had placed himself under his care. If the plaintiff had received injuries while passing from the depot building to the car, or while in the car before the conductor assumed control of the car, a very different question would be presented.

The conductor in ordering the car to be moved acted as the agent of the R. R. Company, and the plaintiff did not terminate the relation of carrier and passenger by attempting to assist the conductor as requested. It was the duty of the conductor to know the situation of the place where he asked the passengers to alight, and if it was not safe and secure for them to do so to inform them of the fact. The eviden ee tended to, if it did not conclusively establish, the defendant’s negligence. It was clearly a question for the jury to say whether the plaintiff himself was guilty of any negligence or carelessness which contributed to the injuries which he received. He was invited by the defendant’s, agent to leave the car at the place where he did, and it cannot be said that his action was altogether voluntary. Passengers on board of cars are largely under the direction and control of the conductor, and it is his du,ty to exercise the greatest care and caution in providing for their safety. Hickey v. Railroad Company, 14 Allen, 429 ; Sweeny v. Railroad Com pany, 10 Allen, 368 ; Hulbert v. N. Y. C. R. Co., 40 N. Y., 145 .

The learned trial judge granted a new trial, as appears by his opinion printed in the case, for the reason that when the plaintiff boarded the car it was outside of the depot grounds and there was not sufficient evidence to justify the jury in reaching the conclusion that there was an agreement or consent by the railroad company that the plaintiff might occupy the car in the place where he found it, and that the plaintiff took all the hazard of his conduct in occupying the car before he was invited to do so by the company. As already stated, I do not think the plaintiff’s right of recovery is made to depend upon that question.

The order appealed from reversed and anew trial denied with costs.

All concur.