Majority
Headnote
1. Railroads—Elevated—Duty.This action was brought to recover for personal injuries sustained by the plaintiff in the city of New York while a passenger on the defendant’s railway, at about 7 o’clock on the morning of March 12th, 1888, the day of the so-called “blizzard.” The plaintiff entered the down-town train at Seventy-sixth street, which was filled with passengers, and finding no vacant seat stood in the passageway. The track was blocked by the trains ahead, which could not get up the grade commencing at Seventy-sixth street on account of the snow which clogged the rails and the spaces on each side. About twenty minutes after the plaintiff entered the car a train in the rear, which had started from Harlem, drawn by two engines and having several cars crowded with passengers, ran into the train in which the plaintiff was, causing the injury of which he complains. It was claimed on the trial that the collision was caused by the negligence of the defendant (1) in not discharging the passengers on the train in which the plaintiff was when it wras found that it could not proceed as required by the rules of the company; (2) in starting the colliding train from the Eighty-fourth street station with directions to “ skip the Seventy-sixth street station,” when it was known to the agents of the company, or ought to have been known to them, that the road was- blocked at Seventy-sixth street; (3) in running the train at a dangerous rate of speed from Eighty-fourth street to the point of collision. The storm known as the “ blizzard ” was unprecedentd in its character and severity. The weather forecasts published the day before gave no indication that such a storm was to be expected. It rained on the 11th, and about midnight the storm changed to snow, accompanied by a very high wind. The snow continued until about 5 o’clock of the morning of the. 12th, when it stopped snowing for some hours. It then commenced to snow again, and continued snow*
But the court, we think, erred in refusing to;charge a proposition requested to be charged by the counsel for the defendant and in the instructions following the request, to which refusal to charge and to the charge as made the defendant’s counsel excepted. The defendant’s counsel requested the court to charge “that the evidence does not justify a finding that the defendant, should not have operated its railway at all at the hour when the accident occurred.” The court said: “I do not express any opinion on the evidence; it is before you. It is for you to say whether the evidence does establish negligence on the part of the defendant to operate at the time and at the hour specified.” By this charge it was left to the jury to determine whether the situation. was such as to require the defendant, in the exercise of due-care, to have wholly suspended its efforts to move its trains at and before the time of the collision. There was, we think, no evidence-to justify the submission of this question to the jury. The storm had apparently abated. The trains of the defendant were crowded with passengers seeking passage to the lower part of the city. It was the duty of the defendant, under its charter, to operate its trains, if practicable, for the convenience of the public. Ho accidents had, so far as appears, occurred on that day prior to the accident in question, and the road had continued its efforts to-move its trains. Up to about the time of the accident the street, surface roads had continued their traffic, and they naturally would be more likely to be impéded by the snow than the elevated roads. The forecasts of the weather were, as has been said, favorable. The jury were permitted to find that the defendant should, in the exercise of due prudence, have wholly suspended its operations before the time the accident happened, although the public were ' clamoring for transportation and crowding its cars for passage. We do not think that upon the evidence there is any warrant for imputing negligence for not earlier suspending traffic on its road. The main charge on this point it is said referred only to the question of negligence in running the colliding train from Eighty-fourth street station, with directions to “skip Seventy-sixth street,” when the road was blocked at that point. But the request to charge and the instructions given thereon indicate that a broader contention was made on the trial, viz., that- the entire operation of the-road should have been suspended, and that negligence could be predicated upon the fact that the company undertook to continue the operation of its road.
For the error in the refusal to charge the proposition referred to, and in the charge made in response thereto, the judgment should be reversed, and a new trial granted.,.
All concur.
Judgment reversed.