Marks v. Rochester Ry. Co

• Decision Date: 21 May 1895
• Parties: MARKS v. ROCHESTER RY. CO.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 181

40 N.E. 782

MARKS

v.ROCHESTER RY. CO.

Court of Appeals of New York.

May 21, 1895.

Appeal from supreme court, general term, Fifth department.

Action by Haskell H. Marks, an infant, by his guardian ad litem, against the Rochester Railway Company, for personal injuries. From an order of the general term (28 N. Y. Supp. 314) reversing an order granting a new trial, and directing judgment for plaintiff on the verdict, and from the judgment entered thereon, defendant appeals. Reversed.

Appeal by defendant from an order of the general term. Fifth department, reversing an order of the Monroe circuit granting a new trial in the action and directing judgment for the plaintiff upon the verdict of the jury, and from the judgment entered thereupon. The action is based on the negligence of the defendant, a street-railway corporation. The plaintiff, at the time a boy of 11 years and 4 months of age, was run over by one of the cars of defendant upon St. Joseph street, in the city of Rochester, N. Y., upon the 23d day of February, 1892, in consequence of which his leg was crushed so as to require amputation. The line of the defendant's road upon St. Joseph street, at that time, was a single-track line, the cars meeting and passing each other by means of switches placed at intervals. The cars in use were one-horse cars in charge of a single employé, who was at the same time driver and conductor. His position was in an inclosed platform in front of the car. The brake was at the front of that platform. The entrance for passengers was by means of a narrow platform, open at the sides, at the rear end of the car. The rear platform was 3 feet 4 inches wide. At the end was a dash, about 20 inches wide and about 30 inches in height, with a rounded top. The platform was 10 inches below the floor of the car and 14 inches above the rail. The distance between the rails upon which the car ran was 4 feet 8 1/2 inches inside. The rails themselves were about 4 inches wide, so that from the outside of one rail to the outside of the other was upwards of 5 feet 4 inches. The body of the car was 7 feet 2 1/2 inches wide at the widest part. The length of the car was 16 feet 2 1/2 inches, including platforms. These measurements show that the guard upon the back of the rear platform protected just half of the space, leaving an unprotected space of 10 inches upon each side; that the platform itself was 2 feet narrower than the distance between the rails, leaving an open space of 1 foot on either side unprotected from the wheels; that the body of the car was nearly 4 feet wider than the platform, so that there was an extension of the side of the car nearly 2 feet upon each side beyond the edge of the platform. Upon the day in question the plaintiff was chopping ice upon the sidewalk in front of his father's house on St. Joseph street, when his attention was attracted by the approach of two street cars of the defendant from opposite directions upon the single track in that street. The nearest switch was some distance south. After considerable altercation between the drivers, it was decided between them that the one who had come from the south should go back to the switch. To go back to the switch it was necessary to hitch the horse to the rear end of the car, and pull the car backward to the switch. To do this required two persons, one to drive and the other to manage the brake. The driver thereupon called to the plaintiff, and told him to come and take the lines. The plaintiff drove the horse around the car, and, after the whiffletree was fastened to the rear end of the car, he got upon the rear platform, and the driver told him to go ahead, he himself going back to manage the brake. After the car had proceeded a short distance, a number of other boys jumped upon the car, and some of them got in the car, and started to swing the car by dancing. The driver hallooed for the boys to get off. At this time the car was moving, the horse being on a trot. They did not do so, and he hallooed again, and stamped his foot, and made a rush or feint as though he were coming through the car to drive them off, at which the boys took fright, and scrambled off the car as fast as they could, and in doing so pushed the plaintiff off the platform. He was thrown under the car, and received the injuries complained of. The father and mother of the plaintiff knew nothing of his employment to drive the car, and did not consent thereto. The evidence is undisputed, the defendant offering no evidence whatever upon the second trial. The defendant moved for a nonsuit upon various grounds, and took exceptions to the charge of the court and refusals to charge as requested. The jury found a verdict for the plaintiff for $7,000. Further facts are stated in the opinion.

Charles J. Bissell, for appellant.

Eugene Van Voorhis, for respondent.

ANDREWS, C. J. (after stating the facts).

On the first trial the jury disagreed. The plaintiff, on the second trial, recovered a verdict for $7,000, which the trial judge subsequently set aside for what he regarded as his own error in refusing a nonsuit. On appeal from the order setting aside the verdict, the general term reversed the order, and directed judgment on the verdict, which was entered, and this appeal is brought by the defendant from the order of the general term and the judgment pursuant thereto. The complaint alleges that the plaintiff was engaged in assisting in the management of the car, under the direction of the driver, and was placed on the rear platform to drive the horse, and while so engaged was crowded from the platform by persons who were leaving the car, and was thrown under the wheels and injured, and that the injury was caused by the negligence of the defendant. The only specification of negligence contained in the complaint is that the platform on which the plaintiff was stationed for the purpose of driving the horse was an unsafe and unfit place upon which to put a boy of his age to perform they duty imposed upon him, The trial judge submitted to the jury two questions: First, whether there existed such an emergency at the time as to authorize the driver of the car to employ outside assistance to get the car back to the switch; and, second, if the jury found that such an emergency existed, whether he was negligent in placing a young boy, under the circumstances, upon the platform to drive the horse. The judge excluded from the consideration of the jury any claim of...