Grimshaw v. Lake Shore & M.S. Ry. Co.

• Decision Date: 07 May 1912
• Citation: 205 N.Y. 371,98 N.E. 762
• Parties: GRIMSHAW v. LAKE SHORE & M. S. RY. CO.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 371

98 N.E. 762

GRIMSHAW

v.LAKE SHORE & M. S. RY. CO.

Court of Appeals of New York.

May, 7, 1912.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Thomas Grimshaw as administrator of Thomas Cole, deceased, against the Lake Shore & Michigan Southern Railway Company. From a judgment of the Appellate Division of the Supreme Court (140 App. Div. 687,125 N. Y. Supp. 626) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Thomas D. Powell, of Buffalo, for appellant.

Ford White, of Buffalo, for respondent.

WILLARD BARTLETT, J.

The tracks of the Erie Railroad Company cross the tracks of the defendant, the Lake Shore & Michigan Southern Railway Company, at a point in the city of Buffalo. At the time of the accident which gave rise to this action, in December, 1907, the Wabash Railroad Company operated some of its trains over these tracks of the Erie. A Wabash engine thereon attempted to cross the point of intersection when it was struck by one of the defendant's freight trains running along one of the intersecting tracks. The collision resulted in the death of the plaintiff's intestate, Thomas Cole, an employé in the office of the master mechanic of the Erie Railroad Company at East Buffalo, who was riding on the locomotive. This action was brought to charge the defendant with liability for negligence in the operation of its freight train at the crossing. The answer was a general denial. The plaintiff recovered a small verdict, the judgment upon which has been affirmed by the Appellate Division, one of the justices dissenting on the ground that the plaintiff's intestate was a trespasser upon the Wabash engine at the time of the accident, and the defendant could be held liable only in case it caused his death willfully, wantonly, or recklessly, of which there was no evidence. The trial judge charged the jury that the defendant owed to every one on that engine ordinary care to keep him from being injured, and it must be assumed that the verdict was based upon a finding of the absence of such ordinary care.

[1][2] The plaintiff's intestate was evidently on the locomotive with the sanction of the engineer in charge. He had been in the habit of riding on it once or twice a week for a couple of months prior to the accident. It is true that there were rules both of the Wabash and of the Erie Company to the effect that unauthorized persons would not be permitted to ride on the engines; but it did not appear that Cole had ever had notice or possessed any knowledge of these rules. He was a licensee rather than a trespasser in the same sense that one is a trespasser who boards a train forcibly or gets on secretly to obtain transportation furtively. In the absence of authority on the part of the engineer to permit him to ride on the engine, he did not become a passenger, but the permission relieved him from the imputation of being a wrongful intruder and obligated the Wabash Company to the exercise of ordinary care not to injure him. See 4 Elliott on Railroads (2d Ed.) § 1581. His presence on the engine being thus lawful as to the Wabash was equally lawful as to the defendant, and it was also bound to exercise ordinary care not to injure him. There was evidence that it failed in its duty in this respect.

We are referred to the case of Eaton v. Del., L. & W. R. R. Co ., 57 N. Y. 382, 395,15 Am. Rep. 513, as an authority precisely in point to show that the plaintiff's intestate was not lawfully upon the engine at the time when he was killed. That case was decided by the Commission of Appeals in 1874, and the decision was not unanimous. There was an able dissenting opinion by Commissioner Earl, afterward chief judge of this court. The plaintiff had been invited by the conductor of a coal train belonging to the defendant to ride thereon. The conductor informed him that the company was in want of brakemen and invited him to ride back to a specified station with a view to obtaining employment as a brakeman. There was a printed regulation of the company forbidding passengers to ride upon coal trains, but it did not appear that the plaintiff knew of this regulation or had any reason to suppose that the conductor was doing an unauthorized act in inviting him to get upon the train. A majority of the Commission of Appeals held that, inasmuch as the conductor of a freight train has no power whatever as to the transportation of passengers, notice to the plaintiff of his limited authority in this respect would be implied, and hence that the plaintiff's presence on the freight train was unlawful. From this view Commissioner Earl dissented, saying: ‘I think no authority can be found holding that a person, under such circumstances, is unlawfully or wrongfully upon a train, but there are numerous authorities in this and other states holding otherwise. This being so, there is abundant authority for holding that he was entitled to protection against the willful or negligent acts of the defendant or its agents.’ In view of this dissent, I think that the Eaton Case should be regarded as a controlling precedent only in cases where the circumstances are precisely similar, and that the doctrine of the prevailing opinion should not in any wise be extended. Thus limited, it is applicable only to cases where the party injuried is chargeable with notice that the railroad employé who permits him to ride on a particular train has no authority to do so.

[3] It cannot fairly be contended in the present case that the plaintiff's intestate must be presumed as matter of law to have known that the engineer had no authority to allow him to ride upon the engine.

It may also be observed in regard to the Easton Case that the members of the Commission of Appeals who united in the prevailing opinion expressly refrained from declaring that the plaintiff was a trespasser. Eaton v. Del., L. & W. R. R. Co., supra, 57 N. Y. 394, 15 Am. Rep. 513.

[4] While permission to ride on a freight train or...