Archer v. New York, N.H.&H.R. Co.

• Decision Date: 04 October 1887
• Citation: 13 N.E. 318,106 N.Y. 589
• Parties: ARCHER v. NEW YORK, N. H. & H. R. CO.
• Court: New York Court of Appeals Court of Appeals

106 N.Y. 589

13 N.E. 318

ARCHER

v.NEW YORK, N. H. & H. R. CO.

Court of Appeals of New York.

October 4, 1887.

Appeal from general term supreme court, First department.

Henry H. Anderson, for appellant.

Dennis McMahon, for respondent.

DANFORTH, J.

The action was brought to recover damages for injuries sustained by reason of the defendant's negligence in the management of its train at a place known as the ‘Union Depot,’ in the city of Hartford. The plaintiff, as a passenger, was brought into the station over another line, (the New York & New England Railroad,) which, as well as the defendant, had the right to use and enjoy it for the receipt and delivery of passengers, and no claim is made that he was not lawfully there. Nor is it denied that he was hit and severely wounded by an incoming train of the defendant. His right hand was so crushed that amputation above the wrist was necessary; his skull and scalp severely injured,-the scalp so cut and torn from the parietal bone on the right side of the skull that it was entirely bare. There was also a fracture at that point. On the right side of the back part of the head was a compound comminuted fracture of the skull, and there were also bruises on the face. Such were the injuries as described by the surgeon. A hand-bag, also, which the plaintiff was carrying in his right hand, was at the same time injured. As to these matters there was no controversy, and it stands as a fact in the case that each injury was upon the right side and upon the upper part of the person, and none elsewhere.

The contention was against the plaintiff's claim as set forth in the complaint, and in proof of which evidence was given, viz.: That after disembarking from his train, and while standing upon the platform and preparing to leave, ‘he was run against, and knocked off the platform, and run over’ by the defendant's train coming from the south, over a track laid just east and outside of the platform. He had never before been in Hartford, and, as the complaint alleges, and as he proved, ‘was totally ignorant that there was any such track,’ or of the approach of the defendant's train; and one point of his accusation was that no preliminary warning was given to him in that behalf; that it was dark; that the train came up unseen by him, without notice of its approach by bell or whistle or other signal, at an improper rate of speed, under the circumstances, and ‘greater than the law permitted;’ that, on his part, he, with proper care, was upon the platform in the course of exit from the station to go to his destination in the city. At the close of the plaintiff's evidence, the learned counsel for the defendant moved for a dismissal of the complaint upon the grounds- First, that there is no evidence in the case of any negligence on the part of the defendant; and, second, that the plaintiff has not affirmatively proved himself free from fault. This being denied, the defendant gave evidence tending to show diligence and care on its part, and, as it claimed, lack of care and prudence on the plaintiff's part, to the effect that the plaintiff left the platform, crossed this track, which lay to the east, and got entirely over it, and then turned and attempted to recross the track to the platform, and while he was so doing he was struck by some portion of the front part of the engine, and thrown up; that he fell between the train and the platform; and that the injuries which he suffered were received in this way. The learned counsel for the defendant then repeated the motion above referred to. This was denied, and he moved the trial court to direct a verdict for the defendant. This also was denied.

In submitting the case to the jury, the learned trial judge presented the facts and the evidence at the foundation of the claims of the respective parties, and the principles of law applicable thereto, in a manner so comprehensive and fair that, so far as it concerned the conduct and duty of the respective parties, no exception was taken by either. The defendant's complaint is that he did not say more. Numerous requests were made by its counsel for instructions to the jury, and refused; but of the exceptions then taken only a few are now insisted upon. Other questions arise upon evidence. But the first and principal contention upon this appeal is that the learned trial judge erred in not taking the facts away from the jury, and declaring, as matter of law, that the plaintiff was not entitled to recover.

In an action for negligence, the burden of proof is upon the plaintiff to show that the injury complainted of was caused by the defendant, not in part, but solely; and so the courts hold that the person injured must not by his own negligence have contributed to the injury. What was the plaintiff's conduct at this time? He was brought into the depot by one of its owners. He was entitled to a safe passage out of it, so that he could continue his journey to the place of destination, and he had a right to act upon the assumption that every necessary and reasonable precaution would be taken by its proprietors to make it so. He was discharged in the station, and left to find his way out. The same roof covered the tracks and offices of the road he traveled and the tracks and offices of the defendant's road. The depot was built at one time, and with reference to its being used by both companies. Cross-walks were provided for the convenience of passengers arriving or leaving on either road, and passengers to and from the New England road were in the habit of crossing to the east side as the plaintiff did. He might alight from his train on either side, and from either side go directly from the inclosure. He was not told to go one way rather than the other; both were open to him. He saw no one to direct him, and he followed a crowd of others, 10 or 15 in number, in the way they went. Neither way seemed appropriated to a particular road, and in fact it was not. The business part of Hartford was east of the depot, and so were the principal hotels, and Main street. Cab-stands were on each side, and whether the principal one was on the east side was in dispute.

The plaintiff's intention was to go to the business part of the city; and he left the cars and crossed to the east platform to get a cab. Arriving at the platform, he saw and heard cabmen standing some 10 feet from the platform, and calling aloud. He carried with him two valises,-one a sample case, large and of considerable weight; this he placed near the outer edge of the platform, holding the other in his right hand. The rules of the depot prohibited cabmen from going on the platform. One approached, and was engaged. He took up the large sample case, turned round, and went towards his cab; leaving the plaintiff standing on the platform, and facing the east. The cabman had but a few steps to go, and he placed the bag in his cab. ‘Probably,’ he says, about a second elapsed between the time of the taking of the bag and placing it in his cab. As he opened the cab-door and put it in, he turned, and the train went by him, over the narrow space he had just traversed, an between himself and the platform. The cabman had not before seen the train, and did not know of its approach. He heard no bell or whistle. It was dark, slightly misty, not raining, ‘a kind of hazy evening.’ The cabman was familiar with the running of trains. For two years he had been in the habit of going to the same place, and he says the train came in pretty fast; probably going may be 10 or 12 miles an hour. He shut the carriage door, got on the box, and drove to the tail end of the train. ‘I went,’ he says, ‘to look for the gentleman.’ He saw a crowd of people on the platform surrounding the body of the plaintiff. It appears that a track of the defendant ran on a curve along by the platform, its inner or west rail two feet or two feet six inches from the outside edge of the platform; and, when the train had passed, the body of the plaintiff was found lying in this space, injured in the manner above described. The evidence was positive, and came from both sides, that the cars of the defendant were so constructed that at this curve they overlapped the platform two or three inches and more, according to the oscillations of the car. There was generally an oscillation both ways; a vibration moving backward and forward. In coming from the south, as was the train in question, the cars project over the platform the whole length of the curve; and that took in the platform from the end of the depot south, and included, as the evidence tended to show, the place of injury,-the spot where the plaintiff was standing. His evidence is positive that he never left the platform of his own volition; that he was standing there when hurt. He did not see the train approach; heard no signal; did not even know or see there was a track for that train, but he was by it struck and wounded.

Upon this evidence it cannot be doubted that his injury was the result of the negligence of the defendant. His story cannot be rejected as an improbable one. He was a stranger, on the spot for the first time; the night dark; his attention drawn to the cabman and his destination. He had no reason to suppose the place was one of danger. It was outside the building; he saw no track; had just left the inclosed passenger station; and did not anticipate the events which followed. He might instinctively regard a platform erected for passengers to be a safe and proper place for him. Hazman's Case, 50 N. Y. 60. The conduct of the cabman also furnishes strong corroboration of the plaintiff. He knew of the existence of the track and its use, but, within a second before the train ran upon the plaintiff, he was standing before him, ignorant of its coming, negotiating for a fare, and knew nothing of the impending danger until it passed. So the position and character of the injuries favor the plaintiff's version of the transaction. All...