Lauterer v. Manhattan Ry. Co.

• Decision Date: 01 February 1904
• Docket Number: 76.
• Citation: 128 F. 540
• Parties: LAUTERER v. MANHATTAN RY. CO.
• Court: U.S. Court of Appeals — Second Circuit

128 F. 540

LAUTERER v. MANHATTAN RY. CO.

No. 76.

United States Court of Appeals, Second Circuit.

February 1, 1904

F. E M. Bullawa, for plaintiff in error.

Henry W. Taft, for defendant in error

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

TOWNSEND Circuit Judge.

Plaintiff as administrator, brought this action to recover damages suffered by reason of the death of his son, who was fatally injured by being crushed between the station of defendant's railway at 169th street and Third avenue and a southbound train of cars. Beyond the southerly end of the main platform at this station is a ledge 16 3/4 inches wide sloping from the side of the station house toward the track. It was not separated from the end of the platform by any rail or guard. Above this ledge the distance between the body of the station house and the body of a car on the southbound track is about 21 inches. The accident happened on the morning of December 22, 1899, at about 20 minutes past 7, when a southbound train had stopped at the station with the rear gate of its forward car about on a line with the end of the station building, facing the platform, from which point said ledge extends.

In view of the extraordinary claims asserted in support of the assignments of error, it becomes necessary to summarize the testimony as to the circumstances attending the accident.

Miss Wurtz testified that on the morning in question, as she opened the door of the station, her attention was attracted to decedent by seeing him hurrying out, and she stepped aside to let him pass; that he brushed past her, and 'when he started to run to catch the car the forward gate of the second car was already closed. ' She further testified as follows:

'There was not any one on the platform besides myself. * * * The last gate of the first car was open, the first gate of the second car was closed. The car was not in motion. The young man placed his foot on the last platform of the first car. He placed his foot on the car. The car was not in motion.'

Joseph G. Frost testified that he was acting as conductor on the morning in question, but that he was no longer in the employ of the Manhattan Railway Company; that he duly stopped at said station, took on all the passengers there, closed both gates, gave the signal, and started the train; that, just as the train started, deceased came rushing out, slammed the door and stood there; that a porter held up his hand, and said, 'Too late'; that deceased stood there about a minute to get back his breath, and looked at him; that he (Frost) also said, 'Too late,' and then, all of a sudden, deceased made a dash around the porter, got hold of the stanchion of the car, and got about one-half of his foot on the step over the edge of the platform of the car; that, as soon as he (Frost) saw this, he quickly opened the gate and tried to pull him in, but, before he could do so, deceased turned around and lost his hold, and went down between the car and the station house. He further testified that the gate was closed and the train in motion before deceased attempted to get on, and that he (Frost) did not try to open the gate until after he saw that deceased had got his foot on the platform and that his life was in danger.

William Becker, an employee of Adams Express Company, testified that deceased came behind him, rushing up the stairs, ran by him, pushed him aside, got a ticket, dropped it in the box, ran right ahead past the first door, and swung open the second door; that he (Becker) stood still; that both gates were closed; that, when the cars had gone about two feet, deceased made a leap for the back end of the first car, and the car went a couple of feet, and he slipped and went down between the two cars; that he saw the conductor grab for the deceased to try to pull him on the platform; and that he thought the conductor opened one of the doors.

There was no other testimony as to the manner in which the accident happened, except that of one witness to the effect that she stepped aside to let deceased buy a ticket, because he seemed to be in a hurry.

We think it doubtful whether it would have been error for the court to take the case from the jury on the ground that the practically undisputed evidence conclusively showed that the accident was the direct result of the negligence of the deceased. Elliott v. Chicago, Milwaukee & St. Paul Ry. Co., 150 U.S. 245, 14 Sup.Ct. 85, 37 L.Ed. 1068, and cases cited.

The testimony of Miss Wurtz, as to the last gate of the first car being open is somewhat indefinite as to time, especially in view of the fact that her attention was diverted part of the time by reason of her turning to let the young man pass and to call to a friend who was with her. But the court gave plaintiff the benefit of the doubt, and submitted the case to the jury, charging them on this branch of the case as follows:

'If the gate of either platform was open at the time the young man attempted to board the car, it was to a certain extent an invitation to him to enter, and, if the car was started before the gate was closed, the defendant was guilty of negligence.'

Despite this instruction, counsel for plaintiff has assigned as error the refusal of the court to charge that 'the defendant was bound to exercise all the care and skill which human prudence and foresight could suggest. ' So far as concerns plaintiff's claim that the car was negligently started, the court assumed this perfectly well-settled obligation of law as binding upon the defendant, and in effect charged that, no matter how much care and skill might have been exercised by defendant, if it started the car before the gate was closed, it was negligent.

Error is further assigned to the refusal of the court to receive any evidence concerning the construction of the platform. The theory of counsel for plaintiff on this point seems to be that the court should have admitted evidence as to the absence of a guard or railing shutting off the space beyond the platform, and should have charged the jury that the absence of such railing was negligence. This position is manifestly untenable. It is not the province of a court or jury to reconstruct the defendant's stations upon such theoretical suggestions. If such railing had been provided, and a person had been killed or injured by striking against it, we think it might have been quite as plausibly argued by counsel that the presence of said railing was the cause of the accident, and that, if the space had been left open, such person might have escaped serious injury, by being permitted to fall on the platform ledge, instead of being thrown against the obstruction.

But the vital objection to the evidence offered is that it appears beyond question that the construction of the platform was not the proximate cause of the injury. In support of his contention that the absence of said railing was the proximate cause of the accident, counsel for plaintiff has cited various cases decided in the courts of this state, and especially relies on Ellis v. New York, Lake Erie & Western Railroad Co., 95 N.Y. 546, and Lilly v. New York Central & Hudson River Railroad Co., 107 N.Y. 566, 14 N.E. 503. But in the Ellis Case it was held that the immediate effect of the negligent failure of the railroad company to provide buffers on its car 'was to put the car in such condition that, in case of collision at the rear, its body must be impelled against the preceding car with a force to which it could offer no resistance, and therefore its absence was the 'causa causans,' * * * the proximate cause of injury. ' In Lilly v. New York Central & Hudson River Railroad Co., supra, a divided court, 'after considerable reflection' and 'with some hesitation,' in a 'border' case, held that, where plaintiff was knocked off a car through the negligence of servants, the question whether 'the failure to have the brakes in good condition does bear such a relation to the happening of the accident as to make it a question of fact for the jury to determine, upon all the evidence in the case, whether the injury would have occurred if the brakes had been in good order and properly set. ' In each of these cases the defendant sought to escape liability for negligent failure to provide proper appliances or a safe place, by invoking the protection of the fellow servant rule, and the court refused to allow exemption on that ground.

But we are not here concerned with the decisions of the courts of this state on the question of proximate cause, but with the rule in the federal courts. As was said by the New York Court of Appeals in discussing this doctrine in Condict v. Grand Trunk Railway Co., 54 N.Y. 500:

The rule adopted in Massachusetts and Pennsylvania was also applied in Railroad Company v. Reeves, 10 Wall. 176 (19 L.Ed. 909). These decisions are in direct conflict with the law as settled in this state, and cannot control the decision of this case.'

If counsel for plaintiff had wished to avail himself of a rule such as he claims is established in the New York courts, he was at liberty to bring this action there, instead of resorting to the federal courts.

Counsel for plaintiff pressed upon...