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that obligation. A several defendant need not Division, therefore, instead of ordering a interpose such a counterclaim and give his new trial, should have modified the judgment codefendants the benefit thereof; but wheth-by striking out the recovery against the er he shall do so or not is solely his concern. plaintiff of the excess due on the certificates.

It is urged that the plaintiff might have The order of the Appellate Division should proceeded against the other defendant, the be reversed, and the judgment of the Special wife, alone, in which case the counterclaim Term modified so as to strike out the award would be inadmissible. We may assume of a money judgment against the plaintiff, that this position is correct, but the plaintiff except for costs, and as thus modified afmust take the consequences of the form of firmed, without costs to either party in this action it has elected to bring. The case court, or in the Appellate Division. is not singular. Where a creditor sues the principal debtor and surety in the same ac- HAIGHT, VANN, WERNER and WILtion, either can interpose a counterclaim LARD BARTLETT, JJ., concur. GRAY, J., which inures in favor of both. If, however, absent. HISCOCK, J., not sitting. he sues the surety separately the surety cannot interpose a counterclaim in favor of Ordered accordingly. his principal (Gillespie v. Torrance, 25 N. Y. 306, 82 Am. Dec. 355), though if the principal

(186 N. Y. 347) be insolvent the surety may have relief in

TIETZ V. INTERNATIONAL RY. CO. equity. The form of the action brought by the creditor may, therefore, substantially

(Court of Appeals of New York. Nov. 13, 1906.) affect his rights, but that is a matter for

CARRIERS--INJURIES TO PASSENGERS-ACTS OF him to consider.

CONDUCTOR-NEGLIGENCE.

Where a passenger on an electric car We think that the rule which would ap

while on the running board for the purpose of ply in the case of a common-law action on changing his seat was injured by a collision of the bond controls the disposition of the pres

his body with one of the trolley poles between

the tracks, the conductor's assent to such change ent action, which is not only to foreclose

of seats without warning the passenger of his the mortgage, but to recover a money judg- danger was not negligence, where the distance ment against each defendant for any de- between the trolley poles and the car was great ficiency that may arise on the sale of the

enough to enable persons ordinarily to stand

upon or pass along the running board in safety, mortgaged property. It was said in Nation

and where the construction of the road at the al Fire Insurance Company v. McKay, 21 N. place where the accident occurred was not Y. 191, by Chief Judge Comstock: "In a

unusual, or the distance between the running foreclosure suit a defendant who is person

boards such as was likely to endanger passengers

making ordinary and customary use thereof. ally liable for the debt, or whose land is

Vann, J., dissenting.
bound by the lien, may probably introduce
a set-off to reduce or extinguish the claim.”

Appeal from Supreme Court, Appellato
In that case the remark of the learned judge

Division, Fourth Department. was obiter, but in Hunt v. Chapman, 51 N.

Action by Frederick W. Tietz against the Y. 555, the proposition was decided. Bath

International Railway Company. From a gate v. Haskin, 59 N. Y. 534, is to the same

judgment of the Appellate Division of the effect, though much of the discussion in

Supreme Court (95 N. Y. Supp. 1163), affirmthat case is not germane to this. There the

ing a judgment for plaintiff, defendant apbond to the plaintiff was the joint bond peals. Reversed. of the owner of the mortgaged premises and Charles B. Sears, for appellant. Philip another person, and to bring the case within A. Laing and Hamilton Ward, for respondthe general rule it was necessary to show ent. that the co-obligor was merely a surety. On the trial of this action the plaintiff put in WILLARD BARTLETT, J. This is an evidence a deed to the defendant Phebe tend- action to recover damages for personal ining to prove that the title to the mortgaged juries sustained by the plaintiff while a paspremises was solely in her. We do not see senger upon an electric car operated by the that this fact affects the question before us. Niagara Falls Park and River Railway ComThere is nothing in the case to show that the pany in the Dominion of Canada on Septemloan was not made to both defendants, and ber 10, 1899. on the face of the bond and mortgage the The defendant is the successor in interest debt appears to be that of both. However of that corporation and no question is raised that may be, the plaintiff has sought to re- as to its liability herein in case there is any cover on a personal claim against the de liability at all. The accident out of which fendant Joseph, and by seeking such relief the action arose occurred while the plaintiff it subjected its whole cause of action to any was endeavoring to change his seat in the valid counterclaim that Joseph might have. car. For this purpose he stepped down upon We are of the opinion that the counterclaim the running board, and while there his body in favor of the husband extinguished the was brought into collision with one of the liability on the bond and mortgage, and that trolley poles between the tracks and he was both instruments were properly held by the thrown down and injured. The plaintiff was trial court to be discharged. The Appellate a large man, weighing 250 pounds, and meas

uring 24 inches across the shoulders and 20 inches through the body. He had never before visited Niagara Falls, in the vicinity of which the accident occurred. Having crossed the arch bridge into Canada he took passage on the car, which was bound southward along the edge of the gorge. It was an open car with cross-seats, and one seat at the rear end, facing backward. The plaintiff took this seat within a few feet of the place where the conductor stood. There were no other passengers on that portion of the car. When the car stopped at a place known as the "Dufferin Café" many of the passengers alighted, and the plaintiff observed that the two rear seats in the body of the car were vacant. Thereupon he remarked to the conductor: "I see them two rear seats are empty. I will take one of those seats.” Το which the conductor responded, “Go and take it with pleasure," or, as the plaintiff stated on cross-examination, "Take one with pleasure.” Then, according to the plaintiff's testimony, he swung out to get into the other seat, but came into contact with the trolley pole, the car being then running, according to his estimate, at a rate of from 8 to 10 miles an hour. Although there was evidence in behalf of the defendant to the effect that the conductor shouted, "Look out for the pole,” the plaintiff testified that the conductor said nothing more than has already been stated, and did not say anything about the trolley pole. The proof is that the distance · between the so-called grab handles on the outside of the upright stanchions of the car and the trolley pole was 21 inches, according to the evidence in behalf of the plaintiff, and 22 inches according to the evidence in behalf of the defendant. The plaintiff made the further statement that, when he started to go out on the running board to change his seat, the conductor was looking at him. The case went to the jury solely on the question whether there was negligence on the part of the conductor in having, either in his words, or by his conduct, assented to the act of the plaintiff in leaving his place on the rear of the car to go in front, without giving some warning or intimation of the danger involved in such a movement. The learned trial judge expressly ruled that the railroad company had the right to construct its tracks and poles in the way in which they were constructed, and to run its cars in the manner in which they were run, and that the cars were in proper shape, the road was in proper shape, and the poles were in proper condition. The question presented by this appeal, therefore, is whether the conductor in charge of the car upon which the accident occurred was negligent either in giving the plaintiff a false assurance of safety or in failing to give him a proper warning.

In the case of a railroad company which is a common carrier of passengers it may be assumed that, where a danger arises which

is unknown to the passenger, but which is known, or ought to be known to the agents of the carrier charged with the management of the train, a duty exists on the part of those agents to warn the passenger of the danger or to take some other means to guard him against it. The present case, however, involves the question whether any duty to warn exists where all the conditions which constitute the danger are as observable by the passenger himself and apparently as obvious to him as they are known to the agents or servants of the common carrier. In the simple assent of the conductor to the proposal of the plaintiff to change his seat I am unable to perceive any assurance on the part of the conductor that it would be safe for the passenger to do so without the exercise of due care on his part in executing the necessary movement. The construction of the car and of the railroad line and the position of the trolley poles and the size of his own body were just as patent to the plaintiff as they could have been to the conductor. It is true the plaintiff says he was sitting on the rear end looking at the American side and the scenery and did not notice the location of the trolley poles. We must also accept as true his statement that he had never been over the line before. These facts, however, could hardly have been known to the conductor. The learned counsel for the respondent insists that the conductor was chargeable with knowledge of the position of the poles, the construction of the car, the size of the plaintiff and the fact that the plaintiff was ignorant of the conditions surrounding him; but I can find nothing in the record which furnishes any basis for the assumption that the conductor knew that the plaintiff was not acquainted with these conditions. He certainly appears to have had the amplest opportunity to notice them. It was entirely possible by the exercise of care for the plaintiff to change his seat as he desired by proceeding along the running board on the other side of the car, or by waiting until the car was between two of the trolley poles, when he would incur no danger; and there appears to have been nothing in the expression of his intention to make the change which would necessarily indicate to the conductor that he proposed to attempt it at the precise time when he did. It seems to me quite clear that it would be going too far to hold the railway company responsible for the failure of a conductor to warn a passenger under the circumstances presented by this record. Although the duty to warn has frequently been asserted, I have been unable to find any case with a single exception hereafter to be noted which lays down so stringent a rule against a common carrier as would be established by the affirmance of this judgment. No doubt there is an implied duty on the part of a railroad corporation engaged in the transportation of passengers to employ a

competent conductor. Lambeth v. N. C. R. train was still, but pulled apart when the R. Co., 66 N. C. 494, 8 Am. Rep. 508. While train was started, and the plaintiff fell into a passenger may properly assume that a con the opening. The General Term of the Secductor knows whether he can under the par ond Department held that the conductor, if ticular circumstances get on or off or move be heard the proposal of the plaintiff to cross, upon the train with safety (Filer v. New owed her the duty to warn her of the danger. York Central R. R. Co., 59 N. Y. 351), yet This was on the assumption that the danger where it is plainly open to his observation was unknown to the plaintiff. Clark v. that reliance upon the judgment of those Eighth Ave. R. R. Co., 36 N. Y. 135, 93 Am. placed in charge of a train will expose him Dec. 495, merely holds that an invitation to to risk that a reasonably prudent man will ride on the platform of a street car, and not assume, the passenger is not justified an assurance that it is a safe and suitable in assuming the risk (Cincinnati, etc., R. R. place, may be implied from the fact that the Co. v. Carper, 112 Ind. 26, 13 N. E. 122, 14 car and platform were full of passengers

. N. E. 352, 2 Am. St. Rep. 144). The cases in without room for more, and that the conducwhich negligence has been imputed to a rail tor called for and received the fare from the road company for the failure of those in plaintiff. These facts have no resemblance charge of the train to give proper warning to those in the case at bar. In Craven v. to the passengers have been cases in which International Ry. Co., 100 App. Div. 157, 91 the passengers were ignorant of the condi N. Y. Supp. 625, a passenger who had just tions which constituted the danger to which alighted from a car for the purpose of makthey were exposed. Thus, a typical case is ing a transfer was struck and injured by Gonzales v. N. Y. & Harlem R. R. Co., 39 another car. She had been invited or diHow. Prac. 407, where the plaintiff's intestate rected to make her transfer where she did. was killed on the defendant's railroad im This was held by the Appellate Division of mediately after leaving the car of an accom the Fourth Department to be "somewhat of modation train on which he was a passenger, an assurance that she would have an opbeing run down by an express train coming portunity to make such transfer in safety.” in the opposite direction upon a track on the The only proposition in Lucas v. Metropoliwest side of the train which he had just tan St. Ry. Co., 56 App. Div. 405, 67 N. Y. left; and this court held that it was the duty Supp. 833, which relates in any manner to of the conductor and engineer to see that the the duty to warn passengers is contained in passengers should be prevented from leaving these words in the opinion: “When it [dethe train on the west side, “or at least to give fendant] was about to run its car around the them notice of the approaching train and to curve at the speed set out in the record, it request them either to sit still until that owed the plaintiff a duty of informing him train had passed or to leave the train on the of that fact, or indicating to him in some east side," and that the omission to do so way that he must exercise at that point inconstituted negligence.

creased care for his own safety.” Gatens None of the authorities cited in the brief v. Metropolitan St. Ry. Co., 89 App. Div. 311, for the respondent in support of the proposi 85 N. Y. Sup. 967, merely emphasizes the tion that it was the duty of the conductor duty to warn a passenger on a car platform to warn the plaintiff seems to me to support of the danger to be apprehended in approachhis contention in that respect. I have care ing an unknown curve in the road. The fully examined them all, and deem them opinion in Sheeron v. Coney Island & Brookreadily distinguishable in principle from the lyn R. R. Co., 89 App. Div. 338, 85 N. Y. case at bar. Lent v. N. Y. C. & H. R. R. R. Co., Supp. 958, does not indicate that any ques120 N. Y. 467, 24 N. F. 653, was a case of tion whatever of assurance or warning was assurance of safety to the passengers to pro involved in that case. The same is true of cced from one car to another, and invitation Lansing v. Coney Island & B. R. R. Co., 16 to do so, based on the fact that the conductor App. Div. 146, 45 N. Y. Supp. 120. In Grahad called out "all aboard.” In Wilder V. ham V. Manhattan R. Co., 149 N. Y. 336, Metropolitan St. Ry. Co., 10 App. Div. 364, 43 N. E. 917, where the plaintiff was injured 41 N. Y. Supp. 931, affirmed 161 N. Y. 665, while a passenger upon a platform of one 57 N. E. 1128, a passenger was thrown from of the defendant's cars, it was said by Marher seat in one of the defendant's cars when tin, J.: "Even if the plaintiff assumed the it was passing over a sharp curve. The court ordinary risk which attended riding upon the said: "If warning to the passengers in the platform, he had a right to assume that car was reasonably necessary for their pro the defendant's servants would cause no untection or safety, it was the duty of the de usual disturbance of the crowd, and that the fendant to give them the benefit of it." I cars were so constructed as not to render cannot see how this proposition, as applied his position dangerous from their proximito the circumstances of that case, has any ty to each other in passing over any portion bearing upon the question presented here. of the road, or, at least if such danger exIn Clune v. Brooklyn Elevated R. R. Co. isted, that he would be apprised of it.” This (Sup.) 1 N. Y. Supp. 825, the plaintiff at decision simply asserts the obligation to tempted to step from one car to another. warn against a danger unknown to the pasTheir platforms were in contact when the senger. There was no question of failure

to warn the passenger of danger in Gray v. Metropolitan St. R. Co., 39 App. Div. 536, 57 N. Y. Supp. 587. Although he stood with but one foot on the platform, the plaintiff was deemed to be a passenger "by the ex[:ress invitation or acquiescence of the defendant's employés" because the conductor had taken up his transfer ticket. In Henderson v. Nassau Electric R. R. Co., 46 App. Div. 280, 61 N. Y. Supp. 690, the plaintiff, seeking passage in an open car of the defendant, which was crowded, was moving along the running board in search of a seat when he was struck by à van which the motorman had previously signaled to get out of the way, and which had stopped within about two feet of the track. It was held that the defendant was chargeable with notice that the distance was insufficient for persons upon the running board to escape contact with the van unless they observed it and bent their bodies inward toward the

Lehr v. Steinway & H. P. R. R. Co., 118 N. Y. 556, 23 N. E. 889, was a case in which the plaintiff, after procuring a seat for his wife in one of the defendant's cars, claimed that he had been compelled to ride on the step of the front platform by reason of the crowded condition of the car. He was thrown off by a movement of the passengers on the platform. It was held that the question of the defendant's negligence and the plaintiff's contributory negligence were properly submitted to the jury. The case of Gleason v. Metropolitan St. R. Co., 99 App. Div. 209, 90 N. Y. Supp. 1025, turned on the exclusion of evidence tending to prove the existence of a custom to receive passengers at a particular place, and is not rerceived to bear any possible relation to the questions involved here. The case of Kohm v. Interborough Rapid Transit Co., 104 App. Div. 237, 93 N. Y. Supp. 671, related to an injury attributed to the overcrowding of one of the defendant's cars. No reference is made in the opinion to any liability predicated upon a failure to warn the injured passenger.

The single case which tends to uphold the position of the respondent is West Chicago Street R. R. Co. v. Marks, 182 Ill. 15, 55 N. E. 67. There it appeared that the defendant corporation operated open cars, along each side of which were running boards which, though designed as steps, were nevertheless often used by passengers to stand upon, sometimes when there was no room elsewhere in the car, and sometimes from choice. The plaintiff on boarding the car found all the seats occupied, as well as the aisles between the seats, and also the running board on the right-hand side of the car. He, therefcre, in company with other passengers, got upon the left-hand running board. While in this position the car passed a viaduct which was between 12 and 14 inches distant from the car. The plaintiff knew nothing about this structure, and was not warned of

it by the defendant or any one else. There was no danger in riding on the footboard to one who knew of the existence and nearness of the viaduct, as it could have been avoided by standing close to the car. Upon these facts a judgment upon a verdict in favor of the plaintiff was affirmed by the Supreme Court of Illinois, which held that negligence could be imputed to the defendant corporation in running its cars so near to a fixed structure without warning the passengers who were in a position to sustain injury if not duly cautioned. The distinction between this Illinois case and the case at bar lies in the fact that the viaduct there in proximi. ty to the railroad was no part of the railroad line, and was so close to the track that persons riding on the running board were cbliged to take special care to avoid contact with it, while here the distance between'the trolley poles and the car was shown by uncontradicted evidence to be great enough to enable persons ordinarily to stand upon or pass along the running board in safety, and the trial court expressly negatived the idea that any negligence could be predicated upon the manner in which the railroad was constructed and maintained. Indeed, there was no evidence that the construction of the railroad here was unusual, or that the distance between the running boards of the car and the trolley poles was such as was likely to endanger passengers making the ordinary and customary use of such running boards, or that the manner in which the road was built and maintained was in any respect such as to render the railroad company chargeable with negligence in the maintenance of the various structures making up the line as they existed at the time of the accident. This court said in Craighead v. Brooklyn City R. R. Co., 123 N. Y. 391, 25 N. E. 387, where the defendant's cars passed one another at a distance of 17 inches: “The defendant was not bound to so construct its tracks that it would be impossible for a pas. senger to be struck by another car while he was standing on the outside of an open one.”

I concede the correctness of the general proposition that if the company had created a danger it was its duty to warn its passengers against that danger, but under the charge of the trial judge and upon the theory on which the case was submitted to the jury the appellant had not created any danger in the proper sense of that term. Doubtless the presence of trolley poles is dangerous to any one riding on a car who may come in contract with them. So, also, there are dangers in the operation of every steam railroad, but these dangers are inherent in the operation of the roads and do not fall within the rule I have stated. If there was anything exceptional in the proximity to the track of the trolley poles or any other obstruction it would have been the duty of the conductor to warn the plaintiff of its existence, but I cannot see that it was his duty to warn the pas

senger of a danger which is merely an ordi between the tracks, except for a space of sevnary incident of such railroad travel. This eral hundred feet, which includes the place is the crux of this case and the sole question of the accident, where they come together that was submitted to the jury. Take the and interlock. In the language of the encase of the trolley roads which run under the gineer who made the measurements "the eastelevated railroads in the city of New York. erly rail of the west track crosses the westIt cannot be that it is the duty of the con erly rail of the easterly track,” and at this ductor to warn every passenger of the pres point the trolley poles, which elsewhere are ence of the pillars of the elevated railroad, between the tracks, are on the side farthest nor can he be expected for this purpose to from the river. The plaintiff gave notice of distinguish between residents of the city ac his intention to pass through said narrow customed to travel on the road and passen place, which involved a danger known to gers who are strangers. In Murphy v. Ninth the conductor, but unknown to himself, for Ave. R. R. Co., 6 Misc. Rep. 298, 26 N. Y. the jury could find that it was not obvious Supp. 783, affirmed 149 N. Y. 609, 44 N. E. even to a vigilant passenger on his first trip 1126, the plaintiff while moving from the over the road. The situation was dangerous rear toward the front of the defendant's at one particular point which he had never open car on the step which ran along the seen, though safe over the rest of the road. westerly side collided with an elevated rail There was no notice to warn passengers, nor road column and was thereby knocked off safeguard to protect them. The conductor the car. The distance between the stanchion told the plaintiff to go, and, as he went, kept of the car and the nearest part of the column looking at him. He saw him enter upon the. was fifteen inches. It appeared that he could perilous passage, but gave no warning. have changed his position by proceeding Knowing the danger to one for whose safety along the easterly side of the car where there the law commanded him to exercise the highwere no columns to interfere with his move est degree of care, he exercised no care, but ments, and it was held that the injury to let him go on to ruin without lifting his the plaintiff, if due to any negligence, was voice to prevent. He was the son of the superdue to his own rather than that of the de intendent of the road and but 17 or 18 years fendant.

of age. What he failed to do, the defendant I think this judgment should be reversed, failed to do, and his omission was negligence and a new trial granted; costs to abide event. on its part, as the jury properly found. The

plaintiff exercised some care, for he notified VANN, J. (dissenting). The plaintiff was the conductor of what he was going to do, a passenger and entitled to the high degree and was told to do it. The circumstances of care to which that relation to the defend made this an assurance of safety, upon which ant gave him the right by law.

the right by law. He was a he had a right to rely. Why did he speak stranger to the locality, the railway, and its to the conductor except to learn whether it surroundings. He had never seen Niagara was safe to then and there change his seat, Falls before, and had taken passage in an and why did the conductor tell him to go observation car of unusual size, used in a and take the other seat unless he intended to national park to enable strangers from all assure him it was safe to do so? What was over the world to see the wonderful scenery. the running board for, if not for the use of He did not pay for transportation simply, as passengers? What he did was not dangerous the main object was the privilege of sight-see except under the peculiar facts of which he ing. The management must be presumed to was ignorant, but which the conductor knew have known that the eyes of its passengers or should have known. I'eople were perwere not fixed upon objects near the track mitted to stand on the running board at all and away from the river, but on the grandeur other points on the road and to ride thereon of the view which they were invited to en at will. joy. The want of care by either party to Is it negligence, as matter of law, for a the action should be considered in the light

passenger to do what the conductor tells him of that fact. The evidence, me judice, war to, especially when he looks at him in silence ranted the inference drawn by the jury that while he does it? Could not the jury find the defendant was negligent and the plain from the evidence that the plaintiff, under tiff free from negligence.

the circumstances, was not bound at the peril What are the facts? The plaintiff was on of his life to observe the precise situation of the Canadian side looking across the river at a single trolley pole with reference to the the scenery on the American side. He was track and to measure with exactness its disof such huge size that it was obvious at a tance from the moving car at one particular glance that he could not pass through the point, differing from all others, when he had narrow space between the car and the trolley paid the defendant for the privilege of wit. pole at the place where the accident occurred nessing from an observation car a grand without the utmost danger. The double sight, in the opposite direction from the pole, tracks converged somewhat at this point on and had received from its conductor an asly, which was known to the defendant, and surance of safety? The situation and surthe conductor, its agent in charge of the car, rounding circumstances, what the conductor but not to the plaintiff. The trolley poles are said and did and the right of the plaintiff to

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