Page v. New York Central Railroad — 13 N.Y. Super. Ct. 523

Majority

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Page v. The New York Central Railroad Company.

Headnote

When a railroad company gives such published notice of the running of its trains, and such special notice in the cars of the necessity of changing ears, at any particular station, that every traveller of ordinary intelligence, by the use of reasonable care and caution, would obtain all requisite information as to the route to be travelled, and the cars to be taken at such intermediate point of the voyage, it discharges its whole duty in this respect.

If a passenger, merely by a failure of his own to use such care and caution, instead of changing cars ata particular station, and there taking cars which go to the place to which he has paid his fare, continues in the cars in which he started, and is carried in another direction, the result is to be attributed to his own negligence, and not to a breach of duty or of contract on the part of the company.

If by inadvertence he is started from a station at which he should have changed cars, in a wrong direction, and this is discovered in time to enable him to re turn to such station, so that he may go thence for the place to which he had bought a ticket, without any delay, and if he is permitted to return without charge, but refuses to do so, or to pay his fare for the route he is actually travelling, or to leave the cars, he may lawfully he ejected therefrom. If ejected, his own declarations made some days thereafter, that he was injured thereby, are not competent evidence in his own favor to prove the fact of such injury.

Before Oakley, Ch. J., Bosworth and Hoffman, J.J.)

Argued, Feb., 1857 ;

decided, March 28, 1857.

This action comes before the court on questions of law arising at the trial, being exceptions taken by the defendants to the

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charge of the Judge. It was tried before Chief-Justice Oakley and a jury, in November, 1856, when the plaintiff recovered a verdict for $175.

The action is brought against the defendants as common carriers, to recover damages for an alleged grievance in carrying him over the wrong road, and wrongfully and forcibly ejecting him from the cars.

The plaintiff, on the 8th of October, 1855, bought of the defendants, at Albany, a ticket from that place to Lyons, before six A. M. He took a train which left Albany at half-past six, A. M., and which from Syracuse passed over the old road, so called, through Marcellus, Auburn, Waterloo, and Vienna to Eochester. A second train left Albany at half-past seven, A. M., and from Syracuse passed over the new road, so called, through Lyons to Eochester. The ticket was good in either train to Syracuse. The principal questions of fact litigated, were: First, Whether the plaintiff, on reaching Syracuse, had notice, or might have known, if he had paid proper attention to the means used to give him notice, that he must leave the cars he was'in, at Syracuse, and wait the arrival of the next train? Second, Whether, after leaving Syracuse and before reaching Marcellus, he was told he was on the wrong road, and must take, at Marcellus, the train he would meet there going to Syracuse, and which would carry him there in time to meet the half-past seven, A. M., train from Albany to Lyons ? Third, Whether, notwithstanding such knowledge and information, and after a demand of fare on the old road from Syracuse, if he persisted in continuing on that route, he refused to leave the cars or pay fare, and was for that cause ejected from the cars at Vienna, without more force being used than was necessary for the purpose ? On all these points there was a great conflict of evidence. During the progress of the trial,

George T. Dickinson was called as a witness on the part of the plaintiff, and testified as follows, to wit:

“ I am a fruit dealer; know plaintiff; am his partner; the firm is A. W. Page and Company, 146 W est street, in this city. I remember the fact of his going west last October, a year ago. He started for Lyons to purchase fruits; was well when he left; gone four or five days.” Plaintiff’s counsel here asked witness the following question, to wit: “Was he well when he came back?”

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To this defendants’ counsel objected as incompetent, as nothing had been shown making defendants responsible for nlaintiff’s health or physical condition on his return, which objection the court overruled, and defendants’ counsel excepted. The witness proceeded as follows, to wit: “ He complained very much of his back; he complains of his back still at times; when he takes cold he is affected very materially; it has interfered with his business.’’

So much of the charge as is essential to a more perfect statement of the case, and to present the portions of it which were excepted to, was as follows:— •

“ On the arrival of the train at Syracuse, it is their habit to stop or go slowly before reaching the depot, and the conductor there gives notice to passengers going to Lyons that they must change at Syracuse, and take the cars going by the new road. Mr. Rippy, a witness, says he heard no such notice, but only that twenty minutes would be given for dinner. That is an extraordinary feature in his evidence, gentlemen, because it has been shown that that train never stops there to dine. There is something about that which would require explanation. Mr. Rippy tells us that on arriving at the depot, Mr. Page, (the plaintiff,) left the cars for some ten or fifteen minutes. If he did leave, Mr. Rippy must be mistaken as to the time, because that train starts in five minutes. The cars went on the old road. Mr. Rippy says the tickets were examined, but that nothing was said by the conductor until on the examination after they had passed Marcellus, and then the conductor spoke to the plaintiff about being on the wrong road ; and Mr. Page then said, ‘You are in fault—you must send me back to Syracuse, and give me a passage there;’ and he goes on to say that the conductor refused to give him a passage back. The matter continued on in that way until they arrived at Vienna, where the conductor undertook to remove the plaintiff from the cars. He (the conductor) came into the cars, Mr. Rippy says, with those two brakemen; nothing was said at all; but the conductor pointed out Mr. Page, and he was immediately seized, and removed or put out of the cars. If that is so, gentlemen, then beyond all question the plaintiff has a right to recover, because it was clearly the duty of this company to offer to send this man back to Syracuse, to reach Lyons as he could have done in time,

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by meeting the train for the new road. If they did not offer to do it, they were clearly in the wrong; and as long as they chose to keep him in the cars, and not send him back, they had no right to remove him. If Mr. Rippy’s statement be correct, he evidently wanted to go to Lyons, and not to Rochester. If that is the truth of the matter, then the plaintiff had a right to recover.

“ On the other hand, the defendants say that notice was given at Syracuse, as usual, for passengers to Lyons to change cars; and the brakeman, Richards, swears that upon that day, the 8th of October, when about to leave Syracuse, to go on the old road, notice was given to all persons going to Lyons to change; and he fixed that fact, and the date, by saying, that soon after his attention was called by the conductor to note it. If his attention was called to it, he would easily remember that he had not neglected to do so at that time.

“ Here commences the discrepancy between the two parties. Notice might have been given, and Mr. Page or Mr. Rippy not have heard it; but the conductor states, that upon examining the ticket, before arriving at Marcellus, he found this man was on the wrong road; that he told him so, and that he should get out at Marcellus, and return to Syracuse, which he could do without additional pay, and arrive in time to meet the seven and a half, A. M., train to Lyons. The conductor says that, afterwards, when he got to Auburn, the plaintiff had not left, and he asked him why he had not; finding, further on, that he did not leave, he gave him to understand that he could not go on the road further than a distance equal to that from Syracuse to Lyons: at Vienna he told the plaintiff that he would take him to Rochester for the additional fare; this Mr. Page did not pajr, nor offer to pay; in that stage of the case, when they arrived at Vienna, the conductor says he called in the brakemen ; that he then told Mr. Page he should pay the additional fare or leave the car, and that he refused either to pay or to leave. That story they all three swear to, and that is in contradiction to the story told by Mr. Rippy. There is the painful part of the case, where you have to discover who tells the truth. Then, as the brakemen say, the plaintiff having refused to leave or pay the fare, they were ordered to take him out, and they did so, he making some slight resistance, and they using no further violence than was necessary. If. that be true, then the

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plaintiff has no right" to recover, because his conduct would be contrary to all reason, in not leaving at Marcellus. If the truth is as the conductor and brakemen state, then Mr. Page is undoubtedly in the wrong; and if he refused to get out at Marcellus, when told that he could return to Syracuse, and meet the train going to Lyons, and insisted in remaining in the car going to Rochester, it would be a presumption that he wanted to go to Rochester without paying his fare.

It all turns, gentlemen, on the question as to who tells the truth. That you must decide yourselves, on the view you take of the evidence and all the surrounding circumstances, you must settle the matter according to your consciences, in the best way you can. If you come to the conclusion, that the story of the conductor and brakemen is true, in contradiction of Mr. Rippy’s statement of what occurred at Vienna, then Mr. Rippy would not be entitled to credit in any thing. If¡ on the contrary, you come to the conclusion that Mr. Rippy tells the truth as to what took place in the car, then there can be no doubt as to the truth of the other circumstances he narrates. If you place confidence in the statements made by Mr. Rippy, then the plaintiff is entitled to recover. If, on the contrary, you believe the conductor in his story, then your verdict must be for the defendants.

On the question of damages, if you come to that, the same difficulty arises; for if you believe Mr. Rippy in contradiction of the brakemen as to what occurred in the car, then you cannot believe their statement in any particular, when they say Mr. Page did not complain of injury. We have, on this point, no evidence that the plaintiff did complain until he returned to this city. His partner and Captain Shaw say he then complained, and I believe they add that he still continues to complain. The doctor states he attended upon him, and cured him in May or June; but he probably may be disposed to speak with more certainty of that than others may think justified. The question was raised whether evidence as to the plaintiff’s complaints was competent to be laid before the jury, and I allowed it; but it by no means follows that you are to take those complaints as certain evidence of the extent to which Mr. Page suffered. If that were so, every man might make up his own damages, by making his own complaints. The usual course, where it is claimed that injury has been sus

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tained, is to call a physician who can tell the nature of the injury in order that the jury may rest upon some safe grounds as to what the extent of that injury is. That would be the natural course. No physician has been called, however, and the matter is left, consequently, in a very uncertain position. If you come to estimate damages, then you will consider all the circumstances, and make due allowance for what the plaintiff has omitted to prove.

The counsel for the plaintiff then asked the court to charge the jury as follows, to wit: “ That even if the agents of the company were authorized to eject the plaintiff from the car, yet, if in doing so, they used more violence, than was necessary, the defendants were responsible for damages.”

The court so charged.

The counsel for the defendants then asked the court -to charge the jury: “ That if they believed that notice was given to the passengers who held tickets, for the new road at Syracuse, as testified by defendants’ witnesses, then the plaintiff passed on to the old road through his own default, and the defendants were under no obligation to carry him on without his fare, or to return him to Syracuse.”

The court refused so to charge, unless the plaintiff was shown to have heard the notice. Defendants’ counsel excepted to this refusal.

The jury found a verdict for the plaintiff of $175.

John Graham, for the plaintiff.

John IT. Reynolds, for the defendants.

The inaccuracy with which, as we apprehend, the charge of the Judge at the trial is presented to us, renders a new trial necessary. The Judge is stated to have said, that notice might have been given, and yet Mr. Page or Mr. Rippy not have heard it; and subsequently was requested to charge “that if they believed that notice was given to the passengers who held tickets for the new road at Syracuse, as testified by the defendants’ witnesses, then the plaintiff passed on the old road through his own default, and the defendants were under no obligation to carry him on without his fare, or to return him to Syracuse.”

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The court refused so to charge, unless the plaintiff was shown to have heard the notice.

That the learned Judge meant to qualify this proposition by the idea that it would be sufficient if the plaintiff was in a position to hear such notice, we do not doubt. But as the charge is presented upon the case, the jury would have been misled, and the influence of the error in favor of the plaintiff is apparent.

We proceed, with a view to the new trial, to state our opinion upon the leading points argued by counsel, or arising in the cause.

It may be admitted, that the question is settled, in our state, that a restriction of a common carrier’s liability for goods is not to be effected by a general public notice, although it may be by special contract. (Parsons v. Monteath, 13 Barbour, 353 ; Moore v. Evans, 14 Barb. 524 . See, also, The N. Y. S. Co. v. The Merchants' Bank, 6 Howard’s U. S. R. 382; Davis v. The New Jersey Ins. Co., 4 Sandf. Rep. 136 .)

But the case of passengers is very different from that of goods. The counsel of the defendants very justly argues, that the passenger owes a correlative duty to the company, which he is bound to observe. They are to take care of him, but he is also, in many respects, to take care of himself; and a wilful or a heedless neglect of reasonable regulations actually, or by a strong inference, made known to him, exempts them from any liability for the consequences.

If the plaintiff had travelled the road before, in the train leaving at the same hour, it would be a fact bearing upon the question of knowledge. The weight of that fact would depend upon the frequency and recency of the period of such travelling.

If the defendant gave such published notice of the running of its trains, and such special notice in the cars, of the necessity of changing cars at any particular station, that every traveller of ordinary intelligence, by the use of reasonable care and caution, would obtain all the requisite information as to the route to be travelled, and the cars to be taken at any intermediate point of the voyage, it discharges its whole duty in this respect.

If a passenger, merely by a failure of his own to use such care and caution, instead of changing cars at a particular station, and taking cars which go to the place to which he has paid his fare, continues in the cars in which he started, and is carried in another

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direction, the result is to be attributed to his own negligence, and not to a breach of duty, or of contract, on the part of the company.

The fact of the publicity of such regulations, the time, manner, and circumstances of publishing them, and whether sufficient to bring home actual notice to the passenger, provided he bestows reasonable care and attention, in order to inform himself, is one to be determined by a jury.

Merely pointing the plaintiff, at Albany, to this train of cars, as the one to be taken, is not an .engagement that such train would carry him to Lyons, without a change of cars, in the progress of the route.

Being directed to that train at Albany, as one in which he was to take a seat, would not give him a right, on reaching Syracuse, and being expressly told that he must there leave that train and wait the arrival of, and take a seat in the next train, in order to go to Lyons, to insist on being conveyed to Lyons in the train in which he started from Albany.

Hence, the question necessarily resolves itself into one of fact, and that is, did the company use such means, to give information before reaching Syracuse, of the cars to be taken at that place, in order to be carried to Lyons, that the exercise of reasonable care, attention, and caution, on the part of the passengers, would have brought that information to their notice?

If it did, it was the fault and negligence of the passenger, and not of the company, that the passenger to Lyons continued ignorant of the necessity of leaving the cars at Syracuse, and waiting there until the arrival of the next train. For the consequences of such negligence the company is not responsible.

If passengers for Lyons were not allowed to go as far as Syracuse in the train first leaving Albany, but, on the contrary, were required to start from Albany in the train which left last, those of them who might find it convenient to stop an hour at some intermediate point, would be very apt to complain of such a regulation, as being unnecessarily oppressive and unreasonable. A regulation which promotes the convenience of some passengers, and interferes in no way with that of others, should be regarded favorably, and, if every reasonable precaution is used to bring to all . passengers the knowledge of it, the company should not.be held

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responsible for the consequences resulting from the inattention of passengers, and their neglect of the means used to convey to them such information.

So, if the plaintiff was told, before reaching Mareellus that he must stop there, and return to Syracuse in a train he would meet at Mareellus, and that he might return in it without charge, it was his duty to have returned, if by doing so, he would' have reached Syracuse in ample time to take the train for Lyons. If he refused to do that he should not be held to have any right to continue further on the train in which he was riding.

If the plaintiff left Syracuse on the wrong train through his own neglect to attend to proper information given, that it was necessary for passengers for Lyons to wait at Syracuse for the next train, or was in fault in not leaving the cars at Mareellus, and, notwithstanding that, insisted on going further, the agents of the company had a right to put him out of the cars if he refused to leave them on being requested so to do.

The companjr, in such event, would not be liable for ejecting him from the cars, unless more force was exerted than was necessary for the purpose. If more was used, then it would be liable for any injuries produced, or damage caused, by such excess of force. (Angell on Carriers, § 527 a, and § 531, note 1.)

The plaintiff had not proved enough to make his own statements or complaint that he had a lame back admissible. No physical injury, caused by ejecting him from the car, had been proved which justified the inference that a lame back was the consequence of it. It is difficult to say why his complaints of pain or soreness in any other part of his system would not be equally competent.

There should be some proof of actual injury other than complaints of the party himself,-made several days subsequently, to justify the admission of such complaints. If those who witnessed the transaction give no evidence justifying the inference of actual injury, nor of any complaints of injury made at the time of the transaction, the mere fact that several days subsequently he complained of lameness in his back, without proof where he had been, or what he had been doing in the mean time, is no evidence that such lameness was caused by ejecting him from the cars. It does not amount to as much as an explicit declaration of his own, that

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he was injured by being ejected from the cars. Such a declaration would be clearly inadmissible.

This case is very different from that of Caldwell v. Murphy (1 Kern. 419).

In that case, it was proved by a physician that the plaintiff was injured internally. The witness under examination had taken care of the plaintiff from the time he was injured for about ten or eleven days; had assisted him in getting from his bed, and in getting down stairs, and had seen him repeatedly since. He was asked as to the condition of the plaintiff’s health since the accident, and answered, “he has invariably complained.”

There was sufficient foundation laid for such evidence. But the evidence given in this case reverses the rule, and if of any effect, tends to prove an inj ury from the mere fact of complaints at a subsequent period, without any evidence of injury or complaint at the time of the transaction in question.

A new trial must be granted, with costs to abide the event.

Cases cited

Moore v. Evans 14 Barb. 524 N.Y. Sup. Ct. 1852-12-06 p. 529