King v. Interborough Rapid Transit Co.

Decision Date02 May 1922
Citation135 N.E. 519,233 N.Y. 330
PartiesKING v. INTERBOROUGH RAPID TRANSIT CO.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by James W. King against the Interborough Rapid Transit Company. From a judgment of the Appellate Division, First Department (197 App. Div. 15,188 N. Y. Supp. 700), reversing a judgment of the Trial Term entered upon a verdict in favor of plaintiff and dismissing the complaint, plaintiff appeals.

Modified by granting new trial, and as modified affirmed.Appeal from Supreme Court, Appellate Division, First department.

James A. Beha and John J. Cunneen, both of New York City, for appellant.

B. H. Ames and James L. Quackenbush, both of New York City, for respondent.

POUND, J.

The gist of plaintiff's complaint and proof is that the defendant transported packages of newspapers in charge of carriers on its Third Avenue Elevated railroad for the purpose of distributing them to newsdealers by delivering them on the platforms of its stations; that on October 23, 1919, plaintiff was a prospective passenger on the platform of the Eighteenth street station, having paid his fare, waiting an uptown train, when a bundle of such newspapers was thrown from the front platformof the rear car of a train which passed the station rapidly without stopping; that plaintiff was struck and injured.

As early as August, 1915, the Public Service Commission had approved rules of defendant which regulated the carrying of newspapers with much detail and sufficiently, if obeyed, to prevent carriers or others from throwing bundles of newspapers from moving trains. The danger to bystanders on the station platforms of being struck by such bundles if they were thrown off, particularly from moving trains, must have been a familiar and usual one thus to be foreseen and guarded against. Newspaper carriers were required to wear badges, and the trainmen were charged with the duty of indicating where on the car platforms the bundles were to be deposited and thus were charged with special duties of supervision over the carriers.

[1][2] But an inference of negligence may be drawn from disobedience to rules of conduct by a passenger if the carrier is negligent in enforcing such rules. We are not dealing with an isolated act of a casual passenger. If we were, the gist of the action might be scienter. Carpenter v. Boston & A. R. Co., 97 N. Y. 494, 49 Am. Rep. 540. A custom of carrying many of these packages daily is shown. While it is not shown that infraction of such rules is common, it is shown that trainmen are sedulously instructed never to allow newspapers to be thrown from the platform of a moving car, and that no trainman was at his post on the car platform when the train was at or passing the station platform, as the rules of the defendant required. Defendant was bound to exercise reasonable care to prevent the violation of rules intended for the safety of passengers. It could not rely on moral suasion merely.

[3][4] The Appellate Division has held that the promulgation of the rules established sufficient care in the absence of evidence showing habitual disregard thereof. The law is not so liberal. On plaintiff's prima facie case, we think it was incumbent on the defendant to produce the guard in charge of the rear...

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4 cases
  • Bryan v. Southern Pac. Co., 5846
    • United States
    • Supreme Court of Arizona
    • July 18, 1955
    ...Ohio, Oregon, Rhode Island, South Carolina, Texas.3 While New York is generally credited on the authority of King v. Interborough Rapid Transit Co., 233 N.Y. 330, 135 N.E. 519, with admitting the rules as evidence of negligence, in the later case of Longacre v. Yonkers R. Co., 236 N.Y. 119,......
  • Imbrey v. Prudential Ins. Co. of America
    • United States
    • New York Court of Appeals
    • July 29, 1941
    ...Practice Act, s 602; Humphrey v. Commerce Ins. Co. of Glens Falls, 273 N.Y. 160, 162, 7 N.E.2d 27;King v. Interborough Rapid Transit Co., 233 N.Y. 330, 333, 135 N.E. 519;Queeney v. Willi, 225 N.Y. 374, 122 N.E. 198. In King v. Interborough Rapid Transit Co., supra (233 N.Y. 330,135 N.E. 521......
  • Der Ohannessian v. Elliott
    • United States
    • New York Court of Appeals
    • May 2, 1922
  • Louisville Taxicab & Transfer Co. v. Jackson
    • United States
    • United States State Supreme Court (Kentucky)
    • October 10, 1952
    ...164 N.C. 3, 80 S.E. 65, 49 L.R.A., N.S., 810; King v. Interborough Rapid Transit Co., 197 App.Div. 15, 188 N.Y.S. 700, reversed in 233 N.Y. 330, 135 N.E. 519. Appellee urges that this is a case where the doctrine of res ipsa loquitur should be applied. The bottle which struck the appellee w......

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