Lewis v. President of the Delaware & Hudson Canal Co.

There were two witnesses sworn who witnessed the transaction and it will be perhaps best described in their own language. The first one was Tracey, who was evidently traveling with the deceased, and his version is as follows:

“Was acquainted with Moses Lewis in his lifetime; remember September 18, 1889; I was at Oobleskill on that day; saw Mr. Lewis there on that day walking around the streets; afterwards he and I took the train at Oobleskill to go to Quaker Street, and just before we got to Central Bridge the conductor came in and said ‘ Tickets,’ and Lewis handed him his mileage book; Lewis said, ‘Two to Quaker Street;’ conductor said, ‘I don’t think we will stop at Quaker Street;’ he took the book and tore out some tickets, and said, ‘I will see;’ he went on to the other end of the car and came back, and in the meantime Lewis said, ‘You have stopped there before;’ he said, ‘I will see;’ he came back in about a minute or so and said, ‘We will not stop at Quaker Street; you have got to get off here, and get off here quick; the train will be moving faster soon;’ we started and walked to the rear platform ; we walked there with a quick step ; we walked quick. Lewis was first and got down and took hold of the railing, and stepped off on the right hand side; as we went to the rear end of the car he turned to the right and took hold of the railing and stepped off, and about the time he stepped off the train gave a sudden jerk and threw him against the rear end, and he seemed to whirl right round over the track and fell in under a freight train; when he got out on the platform I did not see the freight train; it was not in sight.”

In response to some direct questions he further stated:

“ Q. As Lewis started to get off the train, describe what movements, if any, he made ?

“ A. After he had hold of the railing, when it gave the jerk, he-tried to get back.

“ And when Lewis got off the last step the freight train was not visible to me, standing on the rear platform.

“ It was the freight train that ran over Lewis; I do not know what part of the train he fell under ; I could not see ; the engine of the freight train did not get by him before he finally let go ; it was not by ; it was just there.”

This statement was not materially changed on cross-examinatian, and being re-examined he further said that there was no freight train to be seen when he started to go down the ¡steps. “ We were trying to get off on the side where .the depot was. Lewis took hold of the railing and was stepping off; the train gave a jerk and that threw him against the railing, and he seemed to hang on for a second and fell down. This was all done in a second ; done quicker than you could tell it ' When he whirled and fell down that was the first time I saw the freight train.”

The other witness, a man named Burns, a passenger on the train, thus describes what took place : “ I was at the time in Gobleskill; have heard Mr. Tracy testify as to the accident that occurred near Central Bridge; I remember that occasion; I got on that train at Cobleslcill; was going to Albany; got in the rear car;, sat on the north side of the car facing the rear end; saw the witness Tracy ; he sat next to the window facing me; Lewis sat with him; did not know him at that time; Lewis sat on the outside facing me in the same seat with Tracy.

“Q. Do you remember j ust before you got to Central Bridge, the conductor came through?

“ A. I think I can.

“Q. What happened?

“A. The conductor came in for his ticket and this man, Mr. Lewis, took a ticket out of his pocket, or a book; I think it was black, and gave it to the conductor, and the conductor returned it to him again.

“ Lewis said he wanted to get off at Quaker Street to go Schenectady ; the conductor told him to wait a minute, to wait and see, he would come back; something like that, and he returned the book to him, aud he put the book in his pocket.

“ The conductor went to the rear of the car; then he came back and touched Lewis on the shoulder and told him he would have to get off there before they were going any faster than they .were going.

“ He got up and went to the rear of the car, and Tracy and four or five men at the rear, I could not tell exactly, and started to get off on the right; the last time the conductor came back he said to-Lewis: ‘ It is going pretty slow now, and it will be going faster, and you better get off now ; that is all I have to say about it;’ he-told him it was a through train and did not stop at Quaker Street; when Lewis and Tracy got to the rear platform I. was looking to the rear ; looking right at them; they went off at the rear of the

car ; it was all done in a minute; somebody pulled the bell; before that, when they got out on the platform, the train was just about going, and that is all there was of it; it was not going very fast; as they got out there it began to pull up all of a sudden; it did not stop ; it went quicker; the next thing I saw, somebody came and says : ‘ Mow you have got to stop, you have killed a man ;’ but I could not say who it was; then the train stppped and backed up, and I got off and saw this man lying there with his legs cut off; at the time the conductor spoke to him first, when he came to take his ticket, it seemed to me that the train was just about pulling in pretty fast, but I could not tell how many miles an hour; we had not quite got then to the Central Bridge depot”

The judgment proceeded upon the ground that this testimony was not sufficient to warrant a finding of negligence on the part of the defendant, and that it did show affirmatively that the deceased was chargeable with contributory negligence. Whether the deceased had paid fare as a passenger to some point east of Cobleskill or not is left in some doubt by the testimony. The conductor was not sworn, or any evidence given in behalf of the defendant. If that was a material fact it should have been passed upon by the jury, as the proof was prima facie sufficient for their consideration on that point But we think it was not material. The most that can be urged by the defendant in thig respect is that the deceased was by mistake in the wrong train. But that circumstance did not affect or change the measure of duty which the defendant owed him as a passenger, or the degree of protection to which he was entitled against the negligent acts of the carrier or its servants. It is true that unless he took passage and paid fare to Albany, the next station where the train stopped, he could have been required to leave the train, but while on it the company owed him the same duty of protection against negligence as the other passengers.

One of the questions for our consideration is whether upon the evidence given the jury could have found that the defendant did not perform that duty. It is not very material whether the language of the conductor to the deceased be regarded as a request, a direction, or an advice to leave the train. It might have been understood as a direction. The witnesses differ somewhat as to the words he used, and the construction tobe placed upon his language was for the jury if that question was of any importance. The jury could have found that the deceased left the train, not of his own motion or upon his own judgment, but in obedience to the wish and suggestion of the conductor, and, but for what the conductor said to him, he would have remained in the car. The conductor’s action must be judged by the circumstances existing at the time. He brought the train almost to a stop while approaching the bridge and the corning freight train, and it could be inferred from the general situation that this was for the purpose of allowing it to pass. The presence of this freight train was an element of danger not necessarily known to the deceased, but which was or should have been known

The language of the defendant’s servant, whatever its fair construction may be, was calculated and intended to put the deceased in motion, and may be regarded as the moving cause of his attempt to leave the train at the time and place that be did. The conductor, it must be presumed, knew the exact situation, the distance between the tracks which brought the trains close to each other, the presence of the coming freight train and the other' elements of danger, if any, to which the deceased would be exposed in leaving the train. If, with knowledge of the existence of a latent danger, known to him but not to the deceased, he requested or invited him to encounter this danger without informing him of it, or guarding against it, he failed to perform that duty to the passenger which the law requires.

In dealing with the passenger the conductor represented the corporation, and any omission of duty or neglect on his part may be imputed to the defendant.

Nor do we think that the evidence was of such a character as to warrant the learned trial court in deciding that the deceased was, as matter of law, guilty of negligence contributing to the injury resulting in his death. It cannot be affirmed, as a legal result of the evidence, that h.e was aware of the presence of the approaching freight train, or that, in the hurry and excitement of the moment,

There is no inflexible rule of law that determines the nature of the act of the deceased in attempting to alight from the train. It must be viewed in the light of the actual situation as it appeared to him and judged by that measure of care and caution which a person of ordinary prudence is expected to observe under like circumstances. The conductor had°presented to the mind of the deceased the alternative of leaving the train immediately in order to reach his destination or of being carried out of his way to a distant point. There was but little time for thought or reflection, and whether, under such circumstances, the passenger made a prudent or a reckless choice was a question to be determined by the judgment of reasonable men. He had a right to assume that the conductor would not expose him to any concealed danger from a passing train. Had he been informed of that element of risk he might not have assumed it or might have guarded against it. Whether, under all these circumstances, his conduct was careless

The judgment must, therefore, be reversed and a new trial granted, costs to abide, the event.

(dissenting).—The plaintiff’s intestate was crushed under the wheels of a freight train and died from the effect of his injuries. The administrator sued to recover damages, but was non-suited at the trial and the general term have affirmed the consequent judgment. I think the decision was clearly right and beyond any reasonable criticism.

The intestate boarded the defendant’s train at Cobleskill, desiring to go to Schenectady. That he was no stranger to the situation is indicated by two facts.' He had a mileage book of the company containing its tickets, which he would not have purchased unless in the frequent habit of passing over the road, and his remark to the conductor about the previous stopping of the same train at Quaker Street indicates his familiarity with its character and his habitual use of it. It was a through train bound to Albany, not scheduled to stop at Quaker Street, and inviting no passengers for that station. This fact the intestate perfectly well knew, and it was his duty to have known it before be went upon the train. What he desired to do was to leave the car at Quaker Street and go by another train direct to Schenectady, instead of following the two sides of the triangle and traveling first to Albany and then to Schenectady, which was the longer and more expensive route. He took the through train, hoping it would stop at Quaker Street, but without any invitation to enter based upon that possibility. He could reach his destination safely by either route, and he simply took his chances of being able to get off at the point which he preferred. He had no right to any such permission, and it is quite obvious that he knew it. The intestate was in the rear car of the train. When the conductor appeared and asked for tickets the intestate gave him his mileage book, saying, “Two for Quaker Street.” The deceased was sitting by the side of Tracy, who was a witness for the plaintiff, and gave his testimony with a very commendable fairness and intelligence. It is his evidence that I shall follow for an account of the accident. In answer to intes-, tate’s announcement of his proposed destination “conductor said,, I don’t think we will stop at Quaker Street; he took the book and tore out some tickets, and said, I will see; he went on to the other end of the car and came back, «and, in the meantime, Lewis said, You have stopped there before; he said, I will see; he carne back in a minute or so and said, We will not stop at Quaker Street; you have got to get off here and get off quick, the train will be moving faster soon.” When this conversation began the train was moving rapidly. When it ended the brakes had heen applied and it was moving, very slow, but still in motion. It did not stop at all until after the accident. That i§ what every witness testifies to except one. He was a Presbyterian minister sitting in a different car from deceased, and with nothing to draw his attention to the precise facts. He said : “The train nearly stopped; I don’t

It is probable that the train slackened its speed to enable a freight train approaching on the other track to first cross the bridge on which the two tracks were so close together that only one train ■could pass at a time. ’ The proof does not show whether this was a usual or an exceptional circumstance. If usual, it would be a just inference that the conductor, knowing the place at which the brakes were applied, would infer the approach of a coming train first reaching the bridge. If, however, the express train, as is generally the case, had the right of way and it was the ordinary duty •of the freight train to wait on the other side for the express to pass, or the coming train was “belated,” as the plaintiff’s counsel says, though I see no such proof in the case, or if from any other cause the slackening of speed at that point was exceptional, then it will not follow that the conductor knew, or ougbtto have known, that the freight train was approaching. The proof permits only of a guess on that point more or less reasonable according to the general knowledge with which one looks at it

Returning to Tracy’s account of the accident, and he is the sole and only witness who saw it and was able to describe it, it appears that he and Lewis both at once arose at the end of the con

Beyond that, we held in the Filer Case, in spite of the stress of circumstances and the invitation of the train agents, that the passenger was not absolved from prudence and care in alighting from the moving train. We said of the then plaintiff that “ if, in leaving the cars, she did not exercise the care and catition which she might and ought to have done, and was careless and negligent in her movements, or in the care of her dress, and by reason of such want of care caused or contributed to the injury, she ought not to recover.” Here, not only is no care or caution affirmatively

These views accord with those expressed in the courts below, and the judgment should be affirmed, with costs.

Andrews, Ch. J., Peckham and Bartlett, JJ., concur with •O’Brien, J., for reversal; Gray and Haight, JJ., concur with Finch, J., for affirmance.

Judgment reversed.