Kelley v. Manhattan Ry. Co.

• Citation: 20 N.E. 383,112 N.Y. 443
• Parties: KELLEY v. MANHATTAN RY. CO.
• Decision Date: 05 March 1889
• Court: New York Court of Appeals

112 N.Y. 443

20 N.E. 383

KELLEY

v.MANHATTAN RY. CO.¹

Court of Appeals of New York.

March 5, 1889.

This is an appeal by the defendant from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon the verdict of a jury for the plaintiff in an action to recover damages for an accident resulting in the death of the plaintiff's decedent in January, 1886. Upon the trial of the action the evidence on the part of the plaintiff tended to show the following facts: The deceased, in company with his brother-in-law, left the saloon kept by the latter on the south-west corner of Thirty-Fourth street and First avenue in the city of New York, about 12 o'clock at night on the 16th of January, 1886, and walked to a saloon kept by a friend, where they remained until between 3 and 4 o'clock. During nearly all the time they were in the latter place the deceased was asleep, and his companions were playing cards. Between 3 and 4 o'clock in the morning they left the saloon, and took a train on the elevated road at Thirty-Fourth street, and went to the One Hundred and Sixteenth Street station, where they arrived about half past 5 in the morning. Where they went and what they were doing between the time they left the saloon of their friend and the time they arrived at the Thirty-Fourth Street station does not very clearly appear. The night in question, as testified to by the friend of the deceased, was quite cold, and from before 12 until between 3 and 4 o'clock in the morning it was snowing, or, in his language, ‘it was sleet, not extra hard; it was a mixture of snow and hail;’ and to avoid the snow and hail they passed the time in the saloon until the hour mentioned, which was Sunday morning. It was quite dangerous walking along the sidewalks, the snow and hail making it very slippery, and it was freezing considerably. The deceased and his companion got out at the One Hundred and Sixteenth Street station and went down the stairs leading to the street. When on the third step from the bottom the deceased fell, and sustained a fracture of the leg, called by the surgeon a ‘Potts' fracture. He was a large man, weighing about 225 punds, and after the accident was taken to the hospital, where he remained until Wednesday morning. Delirium having in the mean time set in, he was removed to Bellevue hospital, where he died the same day. The surgeon in charge of the hospital where he was first taken stated that the delirium was, as he thought, what is known as traumatic delirium, which he stated is indistinguishable from delirium tremens; and there was evidence given on the part of defendant tending to show that the deceased before the accident had been drinking very freely, and that the delirium from which he died was delirium tremens. The brother-in-law of the deceased testified that the steps leading from the train to the street below were very slippery at the time of the accident, and that there was no evidence of any ashes or sawdust or anything of that nature having been spread upon them to prevent people from slipping, nor was there any evidence of any attempt at removing the substance, whatever it was, which had accumulated upon the steps. The steps were inclosed the height of a hand-rail, and from the hand-rail to the roof they were open. They were covered with a roof which projected about a foot on each side of the stairway, and the hand-rail on each side could easily be grasped to aid in ascending or descending the stairs. At the end of all the evidence in the case there was a motion for a nonsuit upon the ground, among others, that there was no evidence of negligence on the part of the defendant, which was denied, and counsel for the defendant excepted.

The learned judge in his charge to the jury said, among other things, that in this case ‘the legal duty of the defendant was to use all human care, caution, and skill to make their ingress and egress from the station safe. They are not called upon by the law to guaranty perfect safety, but they are required to use all the skill, all the diligence, all the care that the most cautious human being would use if he were looking after the protection of his own life and health.’ Upon exception, the latter part of the charge was modified by the court by saying ‘a very cautious,’ instead of the words ‘the most cautious,’ human being would exercise, and, as modified, counsel for the defendant duly excepted to it. In speaking of the condition of the stairway or steps at the place of accident the learned judge also said: ‘If you come to the conclusion that they were slippery at that time, and that means might have been taken to provent them from being so, and that by reason of their slipperiness the plaintiff fell, as has been stated, then, gentlemen, so far as this issue goes, you will be justified in finding for the plaintiff,’-to which portion of the charge exception was duly taken by defendant's counsel.

In response to a request to charge on the part of the defendant the court again said: ‘I hold that in the case of the defendant it is bound to use the utmost care in keeping its steps free from slipperiness, and free from danger on that account, as long as and while it is carrying passengers, who, in their ingress and egress from the station, are obliged to use those steps; and that in the case now before the court there is no evidence of any instantaneous or recent cause of slipperiness which would render render the charge as requested necessary.’ An exception was duly taken to the charge as given.

Howard Townsend, (Brainerd Tolls, of counsel,) for appellant.

Ashbel P. Fitch,(Henry H. Spelman, of counsel,) for respondent.

PECKHAM, J., ( after stating the facts as above.)

The rule in relation to the liability of railroad corporations for injuries sustained by passengers under such circumstances as this case develops differs from that which obtains in the case of an injury to a passenger while he is being carried over the road of the corporation, and where the injury occurs from a defect in the road-bed, machinery, or in the construction of the cars, or where it results from a defect in any of the appliances such as would be likely to occasion great danger and loss of life to those traveling on the road. The rule in the latter case requires from the carrier of passengers the exercise of the utmost care, so far as human skill and foresight can go, for the reason that a neglect of duty in such a case is likely to result in great bodily harm, and sometimes death, to those who are compelled to use that means of conveyance. As the...