Johnson v. New York Cent. & H.R.R. Co.
| Decision Date | 06 January 1903 |
| Citation | 65 N.E. 946,173 N.Y. 79 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | JOHNSON v. NEW YORK CENT. & H. R. R. CO. |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, Third department.
Action by Edward Johnson against the New York Central & Hudson River Railroad Company. From a judgment of the appellate division (73 N. Y. Supp. 1137) affirming a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed.
William P. Rudd, for appellant.
Peter A. Delaney and Joseph A. Murphy, for respondent.
The plaintiff recovered a verdict of $4,000 damages, resulting, as he claims, from a personal injury produced by the defendant's negligence. The learned court below affirmed the judgment entered upon the verdict, but, since the decision was by a divided court, the appeal presents the question whether there was any evidence for the jury which supports of tends to sustain the verdict. The plaintiff was not a passenger nor an employé, but, in the language of the record, was ‘stealing a ride’ from New York to Rochester. He did not get onto the train at the New York station, but, going outside, went up the street to the seconde bridge north of the station, climbed the fence, got on the tracks, and, when the train going north came to a stop at that point, he got on the front platform of the third car from the engine, which was the baggage car, and sat down in the doorway. The train started, and he sat there for nearly five hours, until the train reached Rensselaer, opposite Albany, and there the plaintiff met with the accident or injury resulting in the loss of his arm, to recover for which the action was brought. The plaintiff undertook the journey in the manner stated on the night of the 23d of March, 1900, leaving New York shortly after 9 o'clock, and arriving at Rensselaer about 2 o'clock the next morning. These facts are all stated by the plaintiff himself, who was the principal witness at the trial, and, as to the accident, the only witness. He says that, as the train was approaching the bridge over the Hudson river at Albany, it slowed up, and when it was quite dark he saw a man running alongside the train, which was moving at a speed that the plaintiff described as slow, and the defendant's witnesses as fast. The plaintiff describes the man as dressed like a railroad man, with the coat and cap usually worn by trainmen, carrying a lantern, and, after running along with the train towards the engine for some minutes, he returned, and was proceeding towards the rear of the train, when he discovered the plaintiff still sitting in the front doorway of the baggage car. He got onto the platform with the train in motion, asked plaintiff what he was doing there, and then kicked him off the car with one kick, and, the plaintiff falling off, his arm was crushed under the moving train, and the injury complained of was the result. The plaintiff says he was kicked off on the left side of the train, though when found a few minutes later he was on the right of the track on a six-foot space between tracks.
The plaintiff was not familiar with the locality, and hence might well be honestly mistaken with respect to surrounding objects, and as to whether he was kicked off on the right or left of the train. In whatever way the injury was inflicted, it is quite certain that it occurred at the point where he was found by the operatives of the yard and taken to the hospital in Albany. The question in the case is whether there is any proof that he was kicked off at all. The plaintiff was concededly a trespasser, and the defendant owed him no duty except to refrain from wantonly or unnecessarily injuring him. The theory of the action is that the plaintiff, being on the front platform of the baggage car, sitting in the doorway, was unnecessarily and wantonly assaulted by one of the defendant's servants, resulting in the injury complained of. This allegation is put in issued by the answer, and the plaintiff was bound to prove it. It is not claimed by the plaintiff that he knew the man who thus assaulted him. All he professed to know about him was that he was dressed as described, had the...
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