New York, N.H. & H.R. Co. v. Baker

• Decision Date: 07 December 1899
• Docket Number: 51.
• Parties: NEW YORK, N.H. & H.R. CO. v. BAKER.
• Court: U.S. Court of Appeals — Second Circuit

98 F. 694

NEW YORK, N.H. & H.R. CO. v. BAKER.

No. 51.

United States Court of Appeals, Second Circuit.

December 7, 1899

H. W Taft, for plaintiff in error.

John J Crawford, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges.

LACOMBE Circuit Judge.

The accident happened April 17, 1895, in that part of 4th avenue called 'Park Avenue,' near 109th street, New York City, at which place the work known as the 'Fourth Avenue Improvement' was at that time in progress. The plaintiff's wife was riding in the last coach of a passenger train of defendant coming from Mt. Vernon to Grand Central Depot, New York City. The circumstances of the accident are accurately set forth in the brief of plaintiff in error as follows:

'The train was running past that portion of the avenue where there is now an elevated stone viaduct. The viaduct was not then completed, but the walls on either side were in process of construction. Trains were being run on a temporary wooden trestle which was built over the avenue and outside of the walls of the viaduct. Incoming trains ran on the east of these walls; outgoing trains, on the west. At the place of the accident the walls which now sustain the roadbed were being erected, and a derrick was placed between the walls for the purpose of placing stone upon them. This derrick stood from 16 to 18 feet from the nearest rail of the incoming or south-bound track. * * * To the end of the derrick boom was fastened a fall and block, with a hook attached. The boom was elevated and lowered and the derrick swung by horse power. When the boom of the derrick was lowered sufficiently and swung towards the track, it projected over the track. * * * Just before the accident a stone had been placed upon the wall next to the south-bound track, and one of the inspectors in charge of the work had found fault with the way it was set, and had directed Flaherty (a subcontractor who was doing the masonry work) to reset it. At that time the chain, block and fall were over the place where the stone had been set on the wall. Flaherty gave the order to pick up the stone and reset it, the first direction being to throw the boom up. While the boom was being lifted, the train which carried Mrs. Baker passed by, the boom swung over the track, and the hook suspended from the chain in some way caught in one of the cars and threw the boom towards the south, causing it to strike against a guy rope and swing back. On the rebound some portion of the tackle struck one of the windows of the car in which Mrs. Baker was riding, causing the injuries complained of. The derrick and boom could be used in such a manner that the boom would not interfere with passing trains, and it was customary so to operate it. This was the first accident resulting from the use of this derrick, though it had been in use some months.'

Manifestly, the proximate cause of the accident was a careless manipulation of the derrick by those who had it in operation. A single assignment of error has been presented in the argument, namely, that the trial judge erred in charging the jury as follows:

'If by due diligence on the part of those men who were handling the derrick * * * this accident might have been prevented, the plaintiff is entitled to a verdict;' and later on: 'If it was the fault of those who were doing that work that caused this injury to this woman, the defendant is liable.'

The roadbed and railroad on which the accident happened were owned by New York & Harlem Railroad Company. The defendant's trains were run over them under a lease made in 1848. The legislature of the state of New York, having determined to raise the grade of the railroad bridge at Harlem river, and the approaches thereto, provided for the changes necessary to that end by chapter 339. Laws 1892, and some amendatory acts (chapter 548, Laws 1894, and chapter 594, Laws 1896). The relevant parts of such legislation directed that the grade of the New York & Harlem Railroad be changed from 106th to 149th streets, and that viaduct be adapted to the new grade line by raising the parapet walls, etc. So much of the work as consisted in raising the bridge and the approach from the north, it left the railroad company to do in its own way and at its own cost. As to so much, however, as lay south of the Harlem river, which included the location of the accident, it took the work entirely out of the hands of the railroad company, confiding the execution, direction, and superintendence of the work to a board to be known as the 'Board of Improvement of Park Avenue above 106th Street, in the City of New York. ' This board was to consist of five members, two of them skilled engineers, all appointed by the mayor of New York, who was authorized to fill any vacancies that might occur. The board were given power to pass suitable by-laws, to select a presiding officer and a secretary, to keep records, and accounts, and were expressly required 'to take entire charge and control of said improvement from 106th street to Harlem river, to execute the same in a substantial and workmanlike manner. ' They were further required to do such work as far as possible by contract. One half of the expense (but such half not to exceed $750,000) was to be assessed upon property benefited and on the city at large. The other half was to be paid by the New York Central & Hudson River Railroad Company, or by the New York & Harlem. In pursuance of the powers conferred, and of the requirements of this act, the board for the improvement of Park avenue contracted with Norton & Hulsekemper for the doing of the work, under the superintendence of the 'engineer of said board in charge, and such assistants and inspectors under him as may be appointed by him or by said board. ' Flaherty was a subcontractor of Norton & Hulsekemper.

The measure of responsibility of a railroad company to the passengers it contracts to carry is well settled, and the authorities cited on the argument do not conflict. The carrier is not an insurer of the safety of the passenger. For the...