Ayres v. Delaware, L.&W.R. Co.

• Decision Date: 28 February 1899
• Citation: 53 N.E. 22,158 N.Y. 254
• Parties: AYRES v. DELAWARE, L. & W. R. CO.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 254

53 N.E. 22

AYRES

v.DELAWARE, L. & W. R. CO.

Court of Appeals of New York.

Feb. 28, 1899.

Appeal from supreme court, appellate division, Fourth department.

Action by Emma F. Ayres against the Delaware, Lackawanna & Western Railroad Company. From a judgment of the appellate division unanimously affirming a judgment rendered on a verdict (40 N. Y. Supp. 11), defendant appeals. Affirmed.

Gray and Haight, JJ., dissenting.

William Kernan, for appellant.

William Townsend, for respondent.

VANN, J.

On the 23d of October, 1891, the plaintiff, a physician residing at Saratoga, was called professionally to Brookfield, in the county of Madison. The next day, on her way home, she went to North Brookfield for the purpose of taking a train on the defendant's railroad. She entered the depot by the rear door, bought her ticket, and after waiting nearly an hour for the train, which was late, went out on the platform, through the front door, in order to enter a car. By this time it was dark, and the lamps by which the platform was usually lighted were not burning, but a little light came through the windows of the depot and the passenger coach. The plaintiff was not familiar with the locality, having never been there until this occasion, except as she had passed through a day or two before. As she went from the depot out upon the platform the train was still moving north, and she walked south, with the other passengers, to take the passenger coach. The platform was in good order and without obstructions, but, before the train stopped, the postal clerk in charge of the mail car threw a mail bag out, as he had long been in the habit of doing, and it fell across the route of the plaintiff. As she walked along at her usual people in front of her ahead, with several people in front of her going in the same direction, she did not see the bag, but stumbled over it in the dark, fell, and was injured. She had looked up, as she passed along, at the windows of the first car she met, and, seeing that it was a smoking car, went on; and she had walked between 30 and 40 feet on the platform when she met with the accident. The action has been tried three times, and the last trial, which is now before us for review, was held in May, 1895, about 3 1/2 years after she was injured.

As it appears from the record that the affirmance by the appellate division was unanimous, we are compelled by the constitution and the statute to presume that there was sufficient evidence to sustain the facts found by the jury. Const. art. 6, § 9; Code Civ. Proc. § 191. The exceptions taken to the rulings relating to evidence and to the charge are, however, open to review, and we will briefly consider the most important of those that have been called to our attention.

At the close of the charge the defendant asked the trial judge to instruct the jury ‘that, while the plaintiff may not have been bound to keep her eyes down all the time that she was going as far as the mail bag, she was bound to use reasonable care, and at least look upon the platform at some time during the journey.’ The court refused to charge in those words, but charged ‘that the plaintiff was bound to use reasonable care in going from the station room to the car, and that, if she did not, she cannot recover.’ The defendant excepted to the modification and to the refusal. In the body of his charge the learned trial judge had said to the jury that, ‘no matter how negligent the defendant may have been, if the plaintiff was also negligent in such manner that her negligence contributed to the injury, she cannot recover’; that the ‘plaintiff was called upon, in going upon that platform, to use such care and prudence as a person of reasonable care and prudence would use under like circumstances. Now, what should she do? Perhaps you will have no difficulty in concluding that in going to that car she was not compelled to look at her feet all the time, but she was entitled to go to her car precisely as any other person of ordinary care and prudence would go. If there is something which she did which she ought not to have done; if there is anything which, from the evidence, you think justifies the conclusion that she was going along carelessly, or that she ought to have looked at this time, ought to have seen that this mail bag was there,-then, of course, she is guilty of contributory negligence. Contributory negligence is a question of fact for the jury, and I leave that question to you. If you should find that she was guilty of contributory negligence, notwithstanding you should find that the defendant was guilty of negligence, she cannot recover.’ The plaintiff had testified on her corss-examination that she did not bend her head down, but looked just as all do when they are walking; that she was walking as she always did, and was not looking down on the platform, but looking straight ahead, in the direction of the car that she was seeking, in order to get upon it. The plaintiff had purchased a ticket, and was in the act of taking passage on the defendant's train. She was therefore a passenger, and it was the duty of the defendant to provide a safe platform for her to walk upon in order to enter a coach, and not to expose her to any unnecessary danger, or to one of which it was aware. Carpenter v. Railroad Co., 97 N. Y. 494. She had the right to presume that the platform was a safe place, because it was provided by the defendant for passengers to walk upon as they were invited to enter its cars. Hence instructions that would be proper for a place of known danger, such as a railroad crossing at grade, would not be appropriate to a place which the passenger had a right to presume was safe. While a railroad company may insist upon the specific instruction to the jury that a traveler crossing its railroad at grade is bound to look and listen, and, if necessary, stop until the train has passed, this is because of the well-known danger of walking or driving in front of a moving train, which cannot stop, and which has the right to proceed without stopping. The platform of a railroad station, however, is not a place of known danger, but is presumed to be a place of safety. In this respect it is not unlike an ordinary sidewalk in a public street, which the wayfarer has the right to assume is in a safe condition until in some manner warned of danger. Moebus v. Herrmann, 108 N. Y. 349, 354,15 N. E. 415;Jennings v. Van Schaick, 108 N. Y. 530, 15 N. E. 424;McGuire v. Spence, 91 N. Y. 303;Weed v. Village of Ballston Spa, 76 N. Y. 329, 333. In McGuire v. Spence the court said: ‘He who approaches a railroad crossing approaches a place of danger, and he must look and listen, for he is bound to anticipate a possible harm. But one who passes along a sidewalk has a right to presume it to be safe. He is not called upon to anticipate danger, and is not negligent for not being on his guard.’ While the plaintiff was bound to exercise care, she was not bound to exercise any more care than the law requires in a place presumed to be safe. Hence we cannot say, as matter of law, that she was bound to look down on the platform while walking a given distance thereon, although the jury could so find as a matter of fact. After charging that she was bound to use reasonable care, and that, if she did or omitted anything that a person of reasonable care and prudence would not have done or omitted under like circumstances, the trial judge was not bound to say, in the language of counsel, that she was obliged ‘to look upon the platform at some time during the journey.’ If she was bound to look once in a short distance, how many times may we be called upon to say, as matter of law, that a person would be bound to look in a long distance? Where are we to stop? Moreover, the plaintiff testified that she looked straight ahead, just as all people do when they are walking, but did not look down on the platform. This does not necessarily imply that she did not see the platform at all. The jury had the right to find that she had the view in front of her under command, and that as she advanced her vision continually covered the platform a little way in front of her, and, hence, gradually the whole as she walked along. When a person looks straight ahead it is a warrantable inference that he sees the walk before him, and, while he does not see the part directly at his feet just as he is about to pass over it, it does not follow that he did not see it when a little more remote from it. In Boyce v. Railway Co., 118 N. Y. 314, 319,23 N. E. 304, it was held that a passenger alighting from a coach on an elevated railroad ‘was under no obligation, as a matter of law, to look before she put her foot down, but it was a question of fact for the jury to decide, not only whether she should have been more vigilant, but also whether, if she had looked, she could have seen the hole in the surrounding darkness.’ I think the exception under consideration was not well taken.

The defendant asked the court to charge ‘that upon the evidence there is no ground upon which the jury can find any future damages in reference to the injury to the knee.’ The trial judge said: ‘I will not...