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

• Decision Date: 31 January 1888
• Citation: 33 F. 796
• Parties: ROBOSTELLI v. NEW YORK, N.H. & H.R. CO.
• Court: U.S. District Court — Southern District of New York

33 F. 796

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

United States Circuit Court, S.D. New York.

January 31, 1888

Charles H. Noxon, for plaintiff.

Robert D. Benedict and Henry W. Taft, for defendant.

WHEELER J.

This suit is brought upon a statute of the state of New York to recover damages for causing the death of the plaintiff's intestate. Code Civil Proc. Sec. 1902. It has now been heard on motion of the defendant for a new trial.

The defendant's railroad has two tracks. There was also a track turning off southwardly towards Harlem river, at New Rochelle Junction, with a platform between that and the other tracks. Owen Roehrs lived at West New Rochelle, a village on the opposite side of the main tracks, and had a house there and a commutation ticket entitling him to ride between New Rochelle and New York, but not transferable. New Rochelle Junction was between New Rochelle and New York. It was on the time-tables as a station to which tickets were sold, and at which some passenger trains stopped. Passengers going to West New Rochelle on trains stopping at the junction were in the habit of getting off on the side opposite to the platform and going across the other track, without objection, to a gate, and to that village. The platform was used principally for passengers of the Harlem river branch. The intestate was employed in New York, and bought Roehrs' house at West New Rochelle, and Roehrs told him that he might have his commutation ticket with the house. He took the ticket and moved into the house, and, on two Saturday evenings, rode from New York to the junction on the train stopping there at that time of the evening, on that commutation ticket, about which the conductor made no question, got off the train with others on the side opposite the platform, and went across the other track to the gate, and to his house. On the next Saturday evening, October 15, 1886, he took the same train leaving New York at nine minutes past five, and rode on the commutation ticket, without objection, to the junction, in company with another man going to West New Rochelle. The train arrived at the junction a little after the evening began to be dark. There was no light on the platform. The name of the station was called out, and the conductor got out on the platform with his lantern. The intestate followed his companion to the rear platform of the car in which they had been riding, his companion stepped off on the side opposite the platform, and onto the other track, and, seeing a train coming, sprang across, and called to the intestate to stop. The water-boy on the platform of the next car noticed this call, and, although he did not see the train, spoke to the intestate to come that way. He did not appear to hear or to understand either, and stepped off as the train went by at a speed of 25 or 30 miles an hour, and was struck by, or drawn into, the train, and instantly killed.

The defendant requested that a verdict be directed in its favor on the grounds that the intestate was not entitled to the rights of a passenger; that there was no evidence of any negligence or wrongful act for which the defendant was liable; and that the evidence showed that he was guilty of contributory negligence. The request was denied, and the jury instructed that if he, in good faith, presented the commutation ticket for his passage, and his claim was recognized, and he was carried as a passenger upon it, he was entitled to the rights of a passenger to be carried safely, and to have a secure place to stop at and leave the road; but that if he was endeavoring to pass himself off to the conductor as Roehrs, and to get carried for nothing, when he knew he was not entitled to ride in that manner, the defendant was under no obligation to carry him, or to afford him a chance to stop safely, otherwise than by not exposing him to dangers occasioned by gross negligence; that if any want of ordinary care on his part contributed to produce his death, the plaintiff was not entitled to a verdict in any event; but if not, and it was gross negligence or reckless carelessness to run the other train past this one at such high speed when this one was stopped for passengers to get off, and who might get off onto the track on which that train was running, the plaintiff would be entitled to a verdict whether he was entitled to the rights of a passenger or not; and if not, and he was entitled to the rights of a passenger, and it was not reasonably safe, in view of the whole situation to run the other train by at that speed, the plaintiff would be entitled to a verdict. After the instructions to the jury were concluded, a juror asked whether that he had got off safely on that side before would give him the right to get off there again, to which answer was made that this was all left to the jury.

The principal grounds upon which this motion is urged are the rulings in respect to the commutation ticket, the refusal to direct a verdict for contributory negligence, and the ruling in respect to a safe place to get off the train and leave the road. It is assumed in argument that the presentation of the ticket was itself such a fraud as to make him a trespasser or an intruder, and that his motive would not make any difference with its legal effect. There are cases where it is held that the moral intentions make no difference; but, so far as observed, they are not cases where the question of becoming an ordinary passenger was involved alone, but where the question of liability with respect to other relations was also concerned. In Railroad Co. v. Beggs, 85 Ill. 80, the plaintiff was riding on a free pass issued to another person; in Railroad Co. v. Nichols, 8 Kan. 505, the plaintiff was allowed to ride in the baggage car as an express messenger when he was not such; in Railroad Co. v. Moore, 49 Tex. 31, the person was riding on a freight train; so in Eaton v. Railroad Co., 57 N.Y. 382. But here, the intestate was in the passenger car, on a passenger train, claiming to be a passenger on the commutation ticket, and his claim was recognized. The conductor was a witness, and did not claim that he thought the intestate was Roehrs, nor that he did not know either of them. The conductor had charge of requiring tickets, and implied authority to accept or reject persons as passengers on tickets...