Longacre v. Yonkers R. Co.

• Decision Date: 29 May 1923
• Parties: LONGACRE v. YONKERS R. CO.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 119

140 N.E. 215

LONGACRE

v.YONKERS R. CO.

Court of Appeals of New York.

May 29, 1923.

Action by James Longacre, an infant, by Frederick V. D. Longacre, his guardian ad litem, against the Yonkers Railroad Company. From a judgment entered on an order of the Appellate Division of the Supreme Court, Second Judicial Department (202 App. Div. 845,194 N. Y. Supp. 952), reversing a judgment in favor of plaintiff entered upon a verdict, and directing a dismissal of the complaint, plaintiff appeals. Modified, and judgment of the trial court reversed, and new trial granted.

See, also, 191 App. Div. 770,182 N. Y. Supp. 373.

Cardozo and McLaughlin, JJ., dissenting.Appeal from Supreme Court, Appellate Division, Second Department.

Thomas J. O'Neill, Leonard F. Fish, and F. Herbert Wadsworth, all of New York City, for appellant.

Alfred T. Davison, Addison B. Scoville, and Alex. R. Jones, all of New York City, for respondent.

HISCOCK, C. J.

The question to which we ultimately come in this case is the one whether plaintiff's complaint should have been dismissed or a new trial granted.

The defendant operates a trolley road. Under the care of a young woman who acted as their nurse or attendant the plaintiff and his brother became passengers on one of the defendant's cars. The two boys were respectively five and seven years of age. After they got on the car they became unruly, and their attendant was unable fully to control them. Their unruliness first took the form of running out upon the rear platform of the car, but the conductor speedily put an end to this by driving them back into the car and closing the doors. They then directed their movements to the front platform, and several times, estimated by various witnesses at from three to six or seven, they went out upon this platform. The motorman not only made no effort to keep them off, or to protect them from danger by driving them back, or by closing either the vestibule doors or the doors opening upon the platform, but he rather encouraged their advances by laughing and talking with them. When the car was a short distance from the terminus, and its speed slowed down, the children ran out on the platform, and, his brother having jumped off plaintiff followed his example, and was thrown back under the car and injured.

[1] There was evidence from which a jury could find that the nurse or attendant was competent enough so that it was not negligence for the father and mother to intrust her with the boys. She had ridden on a trolley car three or four times before this with one boy, but never with both of them. According to the evidence most favorable to the plaintiff, a jury could also say that she made due efforts to control the boys, and to get them back from the platform when they escaped from her and ran out, and that on the final occasion when the accident happened she was in pursuit of them to bring them back. We are therefore all agreed that it cannot be said as matter of law that the parents were guilty of negligence in intrusting their children with the girl, or that she was guilty of negligence in not trying to control them and keep them off the platform.

The more debatable question is whether the defendant was guilty of negligence in not foreseeing some such accident as finally happened, and in not making some effort to protect the children from it. The majority of the court take the view that these questions must be answered in favor of the plaintiff.

[2] In view of the michievous disposition which the children displayed in running out on the platform we think a jury could fairly say that the defendant's employee ought to have recognized that the situation which he was permitting to arise was potential in danger to the children, and that they were liable either to fall from the platform or to do just as they did-jump from it as the car approached its terminus and the speed was abated. It did not require unreasonable foresight to see that a prankish child running back and forth as these children did might finally fall into trouble, either through slipping or deliberately jumping from an open platform.

[3][4] Reaching this decision of this question the next one becomes the one whether defendant, in the exercise of reasonable care, ought to have done something to avert danger and prevent such an accident as happened. This question in the discussion of counsel is largely made to depend upon the answer to the inquiry whether the motorman ought to have closed either the platform or the vestibule doors. Counsel and the court seem to have settled upon this step as the one to be taken, if any was, and it is argued by the defendant that it was under no obligation to have vestibule doors, and was under no obligation to keep either set of doors closed. This, we think, places too narrow a phase upon the question of defendant's liability. The real and full question is whether the defendant's employee, when they saw two young children escaping from their attendant and running about the car ought to have done some reasonable thing to prevent such an accident as happended. It was not bound to take the particular step of closing the vestibule doors or of closing the doors leading to the platform or of driving the children back into the car or of putting them off of the car. Undoubtedly it had the choice of any of these methods which would be effective; but we think that a jury had the right to say...