44 N.Y. 478, McPadden v. New York Central Railroad Co.

Citation:44 N.Y. 478
Party Name:STEPHEN MCPADDEN, Respondent, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.
Case Date:May 06, 1871
Court:New York Court of Appeals
 
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Page 478

44 N.Y. 478

STEPHEN MCPADDEN, Respondent,

v.

THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

New York Court of Appeal

May 6, 1871

         Argued Jan. 13, 1871.

Page 479

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Page 480

         COUNSEL

         A. P. Laning, for the appellant.

         James C. Cochrane, for the respondent, insisted that the plaintiff made out aprima facie case. (Stokes v. Saltonstall, 12 Peters, 181; Christie v. Griggs, 2 Campb., 79.) The defendant was bound to furnish a road worthy vehicle. (Alden v. N.Y. C. R. R. Co., 26 N.Y. 102.) It was a question for the jury whether the rail was broken before the train came upon it. (Wolf Kill v. Sixth Avenue R. R. Co., 38 N.Y. 49; Ernst v. Hudson R. R. R. Co., 35 N.Y. 11.) There was negligence in the failure to inspect after the passage of the east bound train; and this was a question for the jury. (Hegeman v. The Western R. R. Co., 13 N.Y. 9.)

         EARL, C.

         The General Term granted a new trial, upon the ground that the judge, at the circuit, should have submitted to the jury the question, whether the rail was broken before it was reached bye the train going west carrying the plaintiff; and it held, if it was thus broken, that the defendant was liable, irrespective of any question of negligence, within the principle of the case of Alden v. The N.Y. C. R. R. Co. (26 N.Y. 102), upon the ground that it was bound to furnish a road adapted to the safe passage of trains, or in other words "a vehicle-worthy road."

         I am obliged to differ with the General Term, for two reasons; 1st.If the rail was broken before it was reached by the train going west, it must have been broken by the train going east shortly before, and there is no evidence whatever that it was broken by that train. All the evidence tends to show that it was broken by the train going west. Such is the evidence of the conductors and engineers of both trains. There is no presumption that the rail was broken before this train reached it. It is unquestioned that the accident was

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caused by the broken rail, and if the plaintiff claimed that the defendant was liable, because the rail was broken before the train upon which he was riding reached it, it was incumbent upon him to prove it. This he failed to do; and if the jury upon the evidence had found it, it would have been the duty of the court to set the verdict aside as against the evidence.

         But there is another reason. It does not appear that plaintiff's counsel, upon the trial, claimed that he had shown any negligence against the defendant, and he did not claim to go to the jury upon any such question, and the General Term did not grant a new trial upon the ground that there was any question of negligence in the case, which ought to have been submitted to the jury, but upon the ground above stated.

         In the case of Alden v. The New York Central Railroad Company, the accident, by which the plaintiff was injured, was caused by the breaking of an axle of the car in which the plaintiff was riding, and it was held that a common carrier is bound absolutely, and irrespective of negligence, to provide road-worthy vehicles, and that the defendant was liable for the plaintiff's injuries caused by a crack in the axle, although the defect could not have been discovered by any practicable mode of examination. That case was a departure from every prior decision and authority to be found in the books of this country or England, and, so far as I can learn, has never been followed anywhere out of this State. It was in conflict with the previous case, in the same court, of Hegeman v. The Western Railroad Corporation (3 Kern., 9). The only authority cited to sustain the decision was the English case of Sharp v. Grey (9 Bing., 457), and yet the decision has been distinctly repudiated in England, in the well considered case of Readhead v. Midland Railway Co., first decided in the Queen's Bench (Law Reports, 2 Q. B., 412), and then on appeal in the Exchequer Chamber (Law Reports, 4 Q. B., 379), where it was unanimously affirmed in 1869; and the court held that the contract, made by a common carrier of passengers for hire, with a passenger, is to take due care

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(including in that term the use of skill and foresight) to carry the passenger safely, and that it does not contain or imply a warranty that the carriage in which he travels shall be in all respects perfect for its purpose and road-worthy. In the Exchequer Chamber, Mr. Justice SMITH, writing the opinion of the court, alludes to the case of Alden v. The New York Central Railroad Company, and dissents from it, and comments upon the case of Sharp v. Grey, relied upon in that case, and he shows clearly that it was no authority for the broad doctrine laid down in that case. He says: "We have referred somewhat fully to this case (Sharp v. Grey), because...

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