Weiler v. Manhattan Railway Co.

There can be no doubt that the defendant is responsible for the negligence of their engineer in starting the train at the point and under the circumstances disclosed by this record. The act evinced a shocking disregard of human life, and it undoubtedly precipitated a number of men into the street below, killing or seriously maiming every one of them. It would only confuse the case to enter into a discussion as to whether the strict relation of carrier and passenger had ceased at the time of this dreadful occurrence. The learned judge at Circuit ruled that it had, and that ruling was certainly as favorable to the defendant as it had any right to expect. It absolved it from that high degree of care required in the running of its trains, and in the maintenance of its tracks and operating machinery. It reduced its responsibility to ordinary care. The jury have found, under appropriate instructions, that the defendant failed to exercise this ordinary care, and was guilty of active negligence. They could not well have found otherwise upon the testimony. It clearly appeared that there was a block near the Fourteenth street station, and that the train in question, filled with laboring men going to their morning’s work, was compelled to halt some twenty-five or thirty-five feet north of the station. After a delay of about six or seven minutes, the conductor announced to the passengers: “ All who are afraid of being late for work, get off.” Thereupon a large number, certainly over fifty, got out upon the walk (thirty inches wide) provided by the company for its employees and proceeded quietly, “ laughing and talking,” towards the station platform, which was near by. Many of these people had almost reached the platform when the occurrence complained of took place. Some of them had even stepped upon the tracks for the purpose of mounting the platform in front.

The testimony also showed that the plaintiff was not guilty of contributory negligence. At all events, there was sufficient evidence of its absence to warrant the verdict. The only contributory negligence claimed by the defendants was the bare act of leaving the car upon the conductor’s practical invitation. That invitation was proved both by direct and circumstantial evidence. A witness testified that the conductor stood upon the rear platform of the first car, and there made the announcement — “ All who are afraid of being late for work, get off.” This was plainly addressed to the passengers in the second car, where the plaintiff was, as well as to the passengers in the first. Lyle also testified that the conductor said something to the passengers in the second ear and that they at once got up in a body and went out. The plaintiff, though speaking English imperfectly, saw a man “ with a cap on ” and a “ blue suit ” call out something, and after that everybody got up — he as well as the rest — and went out. This man with the cap on and the blue suit was then standing at the gate, which was open for the exit of all. The case on this head is thus brought within the principle of Filer v. New York Central Railroad Company ( 59 N. Y., 351 ), and Bucher v. New York Central and Hudson River Railroad Company (98 id., 133). In the Filer case the court said (Grover, J.): “ The employees upon a train, including brakemen, are in the line of their duty in assisting passengers in getting on and off the train. * * * Passengers rightly assume that these persons are familiar with all the movements of the train, and know whether they can, under the

It is urged, however, that the learned judge erred in charging that the mere fact of leaving the train, under the circumstances disclosed, “was not in itself evidence of contributory negligence at all.” This was not error, for the reason that the mere leaving of the car at the suggestion of the conductor did not contribute to the accident. If the plaintiff had fallen directly from the steps of the car or from the walk as he first touched it, the question presented by this exception would have been up for discussion. We have not overlooked the fact that the Court of Appeals, in the late ease of Hunter v. Cooperstown and S. Y. R. R. Company ( 112 N. Y., 371 ), held that an attempt to board a train, moving at the rate of four to six miles an hour, was negligence, as matter of law, although the person making the attempt was directed by the conductor, if he was going on the train, to “ jump on.” There, however, as in the other cases cited (Filer and Bucher), the accident happened in the very act of getting on or off the train. Here the plaintiff and all the other passen

“ That the plaintiff took the entire risk from injury from every peril or danger to which he knew, or, in the exercise of ordinary care, he ought to have known, he was exposing himself by leaving a place of safety and going for his own convenience, with other persons, on the plank-walk.” And “.that if the jury find as a fact, that, in placing himself upon the planks with a number of other persons, the plaintiff omitted to use ordinary ca/re, and that such want of ordinary care on his part contributed directly, even vn the slightest degree, to produce the accident to himself, then the defendant is entitled to a verdict, even if the engineer in starting the train was guilty of gross or criminal negligence.”

The next question is raised by the following extract from the charge:

“ It is contended, on the part of the defendant, that the proximate cause of this in jury was not the starting of the train by the engineer without warning or without a whistle being blown, but that it was caused by some passenger who had been upon the train, either in attempting to get upon it again or after he was upon the train, and

was lying prone on the platform striking some of the other passengers, and three passengers were thereby precipitated into the street. There is nothing here to show that the plai/ntiff was one of those three passengers, nor is there a/nythvng to show that he was i/n a/nyway affected by that act.” The defendant excepted to the part italicised. The charge was correct. The uncontradicted testimony of all the defendant’s witnesses placed the passenger referred to (when he is said to have “ kicked three people off the walk ”) at the rear platform of the first car. The uncontradicted testimony also placed the plaintiff, at the same moment, far in advance of this point. The charge was, therefore, as, indeed, it was throughout, quite as favorable to the defendant as the facts warranted.

Nor was it error to refuse to charge that the defendant owed the plaintiff no active vigilance to guard him from accident. This refusal must b e considered with reference to what the learned judge had already charged, namely, that the defendant was only responsible for ordinary care. It certainly owed the plaintiff whatever active vigilance is implied in ordinary care. To that extent he was under their protection. The defendant evidently confuses the rule as to non-liability for passive negligence, a default in not doing something, where the injured party is a mere licensee, a/nd the commission of some affirmative aet of negligence. (Remer v. L. I. R. R. Co., 48 Hun, 352 ; Larmore v. Crown Point I. Co., 101 N. Y., 391 .) One has no right to carelessly injure even a mere licensee, and the “active vigilance” which is not due him has reference to some affirmative act of care. (See opinion, Earl, J., Nicholson v. Erie Railway Co., 41 N. Y., 533 .)

It was not error to reject evidence, in substance, that similar conduct on a previous occasion had not been attended by disaster. That was what the offer amounted to, namely, that culpable negligence had passed once with impunity.

There was abundant evidence of the permanency of the injury, and also of the permanency of the pain and suffering. The testimony was clear and conclusive that the plaintiff had an incurable disease (resulting from the accident) called “ Potts’ disease of the spine.” The physicians testified that it would last as long as he lived, and the plaintiff himself testified that from the time of the accident down to the day of trial (a period of nineteen months) he

The point that the learned judge erred in charging the jury as follows: “You would also be entitled to take into consideration and to award him a reasonable sum for the certainty of the duration and the continuation of the effects of this injury, if, upon the evidence, you find that the injuries are likely with reasonable certainty to be perma/nent,” might well have been omitted. What the learned judge meant, and what the jury must have understood him to mean, is apparent. The whole charge indicates that what he really dwelt upon was “reasonable certainty” and the word “'likely” was one of those petty slips of the tongue which is apt to creep into almost all colloquial speech. What precedes also renders the meaning clear. It is “ the certainty of the duration ” for which a reasonable sum may be awarded. That it was so understood by the defendant’s counsel is evidenced by the fact that the attention of the court was not specially called by the exception to the inadvertent use of the word “ likely,” and the present cavil is now made for the first time This exception justifies the avowal made upon the argument, that the case was tried closely and with a view to exceptions. Lastly, it would have been absurd to speak to the jury of a possible “ error of judgment ” on the part of the engineer. The question, and the sole question, was whether he exercised ordinary care. Here he exercised no judgment at all. His judgment or want of judgment had nothing to do with the result. Even if he exercised his best judgment, and that proved to be no judgment at all, but, on the contrary, wanton negligence, the defendants would certainly be liable. There are no other exceptions calling for special consideration.

The verdict was just, the trial free from substantial error, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Yan Brunt, P. J., and Daniels, L, concurred.

Judgment and order affirmed, with costs.