56 N.Y. 302, Morrison v. Erie Railway Co.

Citation:56 N.Y. 302
Party Name:MARY MORRISON, by her Guardian, etc., Respondent, v. THE ERIE RAILWAY COMPANY, Appellant.
Case Date:April 07, 1874
Court:New York Court of Appeals
 
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56 N.Y. 302

MARY MORRISON, by her Guardian, etc., Respondent,

v.

THE ERIE RAILWAY COMPANY, Appellant.

New York Court of Appeal

April 7, 1874

Argued Mar. 30, 1874.

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COUNSEL

John Ganson for the appellant. The court should have granted the motion for a nonsuit. (Ill. Cent. R. R. Co. v. Statton, 54 Ill., 133; Phillips v. R. & S. R. R. Co., 49 N.Y. 177.)

A. K. Potter for the respondent. It was not negligence per se for plaintiff or her father to leave the train when it had acquired only the slow rate of motion at which it was then moving. (Filer v. N.Y. C. R. R. Co., 49 N.Y. 47; Mowrey v. Cent. City R. R. Co. [ Com. Apps.], 8 Alb. L. J., 125; Ernst v. H. R. R. R. Co., 35 N.Y. 38, 39; Penn. R. R. Co. v. Kilgore, 32 Penn., 292; Mulhade v. Brooklyn City R. R. Co., 30 N.Y. 370.) Defendant was bound to give sufficient time for plaintiff to alight with perfect safety. (Story on Bail., § 600; 7 Edms'. Stats. at Large, 51, 52.) The whole question of negligence was for the jury. (49 N.Y. 47; 35 Id., 38, 39; Mowrey v. Cent. City R. R. Co. [ Com. Apps.], 8 Alb. L. J., 125.) The court properly instructed the jury that they must be satisfied that plaintiff and her father were free from negligence. (Button v. H. R. R. Co., 18 N.Y. 252, 253; Johnson v. H. R. R. Co., 20 Id., 65; Hackford v. N.Y. C. R. R. Co., 9 Lans., 381.) Carriers of passengers are held to the utmost care in securing the safety of their passengers. (Bowen v. N.Y. C. R. R. Co., 18 N.Y. 408; Deyo v. N.Y. C. R. R. Co., 34 Id., 9.)

FOLGER, J.

The plaintiff was a paying passenger upon the cars of the defendant, and it owed her the duty of taking her

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up, carrying her and setting her down safely, so far as it was concerned therein.

There was testimony in the case, at every stage of the trial, upon which the jury had a right to rely; and relying upon which they had a right to find, that the train on which she was, did not stop at the station, at which she was to be set down, long enough for her to alight with ease and safety. Hence, the plaintiff made out so much of her case as consisted in showing that the defendant was negligent in its duty toward her.

There are undisputed facts in the case, however, which raise other important questions.

As the train approached the station at which she was to be set down, the conductor called out the name of it and then the train stopped. This was a notice and an invitation for her to get out. It was further notice that it was time to alight, and that time enough would be given therefor. The plaintiff and her parents, in whose care she was, prepared to do so, gathered their packages, and were on their feet in the passage-way between the seats. Up to this time it cannot be said that either party was lacking in due care. Before they got outside of the car, however, the train started sharply, and moved slowly by the station. In this, as before said, was the negligence of the defendant. The plaintiff, her father and her mother, while they were yet inside the car, knew that the train was moving; as she was of tender years...

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