Fitzpatrick v. Int'l Ry. Co.

• Decision Date: 19 November 1929
• Citation: 169 N.E. 112,252 N.Y. 127
• Parties: FITZPATRICK v. INTERNATIONAL RY. CO.
• Court: New York Court of Appeals Court of Appeals

252 N.Y. 127

169 N.E. 112

FITZPATRICK

v.INTERNATIONAL RY. CO.

Court of Appeals of New York.

Nov. 19, 1929.

Action by John A. Fitzpatrick against the International Railway Company. Judgment for plaintiff was affirmed by the Appellate Division (226 App. Div. 716, 233 N. Y. S. 753), and defendant appeals by permission (226 App. Div. 854, 234 N. Y. S. 788).

Affirmed.Appeal from Supreme Court, Appellate Division, Fourth Department.

Edward E. Franchot, of Niagara Falls, and John J. K. Caskie, of Philadelphia, Pa., for appellant.

Hamilton Ward and Harold J. Tillou, both of Buffalo, for respondent.

CRANE, J.

The International Railway Company is a domestic corporation owning, maintaining, and operating an electric street surface railroad in various parts of the United States and Canada, and at the time here in question owned and maintained a line of tracks upon the westerly side of the Niagara Gorge at Niagara Falls, Ont. Under an agreement with the Niagara Gorge Railroad Company these tracks were used by this latter company for the operation of its own cars in running a scenic road around the Niagara Gorge. The duty of maintaining the tracks and roadbed rested upon the International Railway Company, a duty regulated by the public authorities, as will hereafter appear. In the operation of its scenic route, the Niagara Gorge Railroad Company, at times, ran two cars hitched together, in charge of a conductor and an assistant, besides the motorman. The first car contained the power machinery, the second car was a trailer, partially controlled by the assistant who sat in the first seat of the car to operate the brakes. These were open cars with side steps which could be raised and lowered. For about a mile of this railway on the west side the cars ran very near to the edge of the gorge, so that the passengers had an opportunity of seeing the wonders of nature below. The poles maintained by the defendant for its overhead wires were also on the gorge side of the railroad for this mile, that is, they were between the tracks and the edge of the gorge, at some places so near to the cars as they passed that the steps were raised and the guard rail lowered to protect the passengers from getting out on that side or from falling out.

The plaintiff was a young man, 23 years of age, attending college at the University of Pennsylvania, who, in the summer time, obtained employment with the Shredded Wheat Company of Niagara Falls to obtain money to pay his college expenses. Saturdays and Sundays, the rush days, he got a job with the Niagara Gorge Railroad Company to act as assistant to the conductor in charge of the brake on the trailer or rear car of the two that made the trip around the gorge. On August 23, 1925, as the cars were running through this narrow belt of a mile or more near the edge of the gorge on the westerly side, the conductor in charge of the cars, a man named Culp, was standing on the rear platform of the forward car near the righthand edge trying to adjust the trolley pole or hold it in place as the cars speeded round a curve. He was bending out backwards toward the side of the car when his head came in contact with a pole of the defendant company sweeping him off the car. The plaintiff, sitting almost directly behind him in the front seat of the trailer near the brake handle, immediately sprang up and instinctively grabbed for the conductor to save him, if possible, with the result that both Culp and Fitzpatrick were carried off and beneath the cars, Fitzpatrick being mutilated for life.

[1] We need not dwell at length upon the negligence of the defendant, as it became a question of fact not reviewable in this court. The points which we must touch upon do not involve the defendant's negligence. The International Railway Company maintained the pole causing the damage as one of its overhead line poles within a distance of about 12 inches from the step of the trolley cars as they went by. This was unnecessary, as there was a distance of about 16 1/2 feet between the outside rail and the edge of the gorge, in any portion of which the pole might have been placed. By section 104, chapter 185 of the Revised Statutes of Ontario, 1914, the Railway and the Municipal Board of the Province of Ontario was given power to make orders and regulations regarding the maintenance and operation of these lines of railway. By order of May 26, 1916, the board made the following order:

‘(14) That the railway from Queen Street in the Village of Queenston to the river dock be reconstructed with a safety switch, and with altered grades and curves, in accordance with the plan approved by the Board, and filed in the office of the Board, a copy of which has been delivered to the company;

‘(15) Where the trolley wire is carried on span wires, the trolley poles supporting the span wires shall be erected and maintained at a minimum distance of seven feet from the centre line of the nearest track, such distance to be measured to the face of the trolley pole nearest the track; provided that where this is impracticable owing to the proximity of the railway to the cliff the Board may permit a trolley pole or poles to be erected nearer the centre line of the nearest track.’

The legal experts called to testify as to the foreign law differed in their views as to the application of these rules and ordinances under the Ontario law, to which reference will be made later. The fact that the International Railway Company was bound to obey these rules, and could have placed its pole further back from the railway, was, without doubt, the chief element of the defendant's negligence.

With this brief statement of the nature of this case, we will pass to the consideration of the two main points raised by this appeal.

Chapter 32 of the Laws of Ontario, 1924, known as the Contributory Negligence Act, provided as follows:

‘(3) In any action or counterclaim for damages hereafterbrought, which is founded upon fault or negligence, if a plea of contributory fault or negligence shall be found to have been established, the jury, or the judge in an action tried without a jury, shall find:

‘First: The entire amount of damages to which the plaintiff would have been entitled had there been no such contributory fault or neglect;

‘Secondly: The degree in which each party was in fault and the manner in which the amount of damages found should be apportioned so that the plaintiff shall have judgment only for so much thereof as is proportionate to the degree of fault imputable to the defendant.

‘(4) Where the judge or jury finds that it is not, upon the evidence, practicable to determine the respective degrees of fault the defendant shall be liable for one-half the damages sustained.’

The trial judge charged that the burden of proving contributory negligence was upon the defendant, and submitted to the jury questions of fact in accordance with this Ontario statute, whereby the jury found the plaintiff guilty of contributory negligence to a degree of 10 per cent.

On this appeal the appellant insists that this charge, in reference to the burden of proof, is wrong, for the reason that the law of the state of New York should govern and not that of the province of Ontario; it claims that the burden of proof of freedom from contributory negligence, in a common-law action such as this, rests upon the plaintiff in New York state, and that, as the rule regarding the burden of proof is but a rule of procedure and not a matter affecting a substantial right, the law of the forum and not the law of the place of occasion should govern. In this the appellant is wrong according to reason and authority.

While it is true that in this state we speak of the proof of freedom from contributory negligence as being a burden of proof resting upon the plaintiff, it is, in reality, even here, more than a mere burden of proof, it is a substantive part of the plaintiff's right to recover. At common law a person has no cause of action for negligence, if he himself has contributed, in the slightest degree, to bring it about. A defendant's negligence is not sufficient to justify a recovery. Two elements are necessary, the defendant's negligence being one, the plaintiff's freedom from contributory negligence the other. The right to recover depends upon the plaintiff establishing both these elements, the defendant's negligence and also his own freedom from contributing negligence. Other jurisdictions have a different rule, placing the burden of establishing contributory negligence upon the defendant. Such is the rule in the federal courts. Inland & Sea-Board Coasting Co. v. Tolson, 139 U. S. 551, at page 557,10 S. Ct. 1063, 34 L. Ed. 539. But whether the plaintiff has the burden in the first instance of proving freedom from contributory negligence, or the defendant the burden of proving contributory negligence, the substantive right to a recovery remains the same; the slightest contributory negligence upon the part of the plaintiff, no matter how or by whom it may be proven, bars recovery, establishes that there is and was no cause of action, no right to damages.

The Contributory Negligence Act of Ontario does more than touch or affect a matter of procedure; it goes beyond directing who shall first proceed to prove that the act of the defendant was solely responsible for the act or the damage. The act gives a right to recover not recognized by the common law. It provides that, even if the plaintiff be guilty of contributory negligence, he may yet recover, if the defendant were more negligent; the recovery, however, being limited to the surplus degree of negligence, as figured out by a jury. The law of the state of New York has no application under such circumstances; it is impossible of application. As a mere matter of procedure, the plaintiff here must prove his freedom from contributory negligence, but, if in his proof he fails to establish his freedom from contributing neglect or shows that h...