Sias v. Rochester Ry. Co.
| Decision Date | 20 December 1901 |
| Citation | 169 N.Y. 118,62 N.E. 132 |
| Parties | SIAS et al. v. ROCHESTER RY. CO. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, appellate division, Fourth department.
Action by Henry Sias and others, administrators of Charles H. McKee, deceased, against the Rochester Railway Company. From a judgment of the appellate division (64 N. Y. Supp. 1148) affirming a judgment for defendant, plaintiffs appeal. Affirmed.
Henry Purcell, for appellants.
Charles J. Bissell, for respondent.
The action was brought to recover damages of the defendant, the Rochester Railway Company, for causing the death of the plaintiff's interstate through negligence. The defendant operated a street railway in the city of Rochester, and the accident happened upon its Lake Avenue Line. The tracks were located between the curb of the street and the sidewalk, and for the whole distance were more or less close to the trees which were grown upon the sides of the avenue. By a traffic arrangement between the defendant and the Rochester Electric Railway Company, the latter, which operated an electric trolley road from Ontario Beach to the city line, ran its cars over the former's tracks to points within the city limits. There was no lease of either road, and each company operated and managed its own trains of cars. At the time of the accident the deceased was riding upon one of the cars of the Rochester Electric Railway Company, as the proofs conclusively show, and at a point upon the defendant's Lake Avenue Line, while standing upon the platform and projecting his person beyond the side of the car, he was struck upon the head by a tree growing in close proximity to the track, and received the injuries which were alleged to have subsequently caused his death. The tree stood within one foot and seven inches of the rail. Notwithstanding that the contract of the deceased for his carriage was with the Rochester Electric Railway Company, it is sought to make the defendant liable for the results of the accident, and the negligence relied upon to create the liability consists in the construction of its railway in such close proximity to a tree. It sustained no contractual relations to the deceased, and none such could be predicated upon a mere traffic arrangement between the two companies, which permitted the carrier of the deceased, for a compensation, to run its cars over the defendant's tracks. The defendant had the right to construct its tracks as and where it did, and what duty of care and precaution it was under for the safe operation of its cars it owed to its passengers. How it performed its duty we are not informed, and it is immaterial here. We know that cars could pass the tree. If there was any negligence, from which the plaintiffs' intestate suffered, it could only have been in the manner in which the Rochester Electric Railway Company operated its cars upon such a track. If the construction of its cars was defective, or if their operation and management were such as not to furnish adequate security for passengers, then that company would be at fault. We do not think that the defendant is chargeable, upon the proofs, with the neglect of any duty owing to the plaintiffs' intestate, and for that reason the dismissal of the complaint was proper.
The judgment appealed from should be affirmed, with costs.
The plaintiffs' intestate, while a passenger in a car over the defendant's railroad, received an injury on the 4th day of September, 1892, which resulted in his death in an insane asylum on the 14th day of December, 1894. On the third trial of the action the plaintiff was nonsuited, and the nonsuit was sustained at the appellate division, although on a previous appeal the same court decided that the case was one for the jury. 92 Hun, 140,36 N. Y. Supp. 378; 18 App. Div. 506,46 N. Y. Supp. 582; 51 App. Div. 618,64 N. Y. Supp. 1148. The question presented by this appeal is whether there was any evidence on the last trial for the consideration of the jury, since, if there was, it must be admitted that the nonsuit was improper.
The learned counsel for the defendant contends that, inasmuch as the death did not occur within a year and a day from the date of the accident, there can be no recovery. This was a rule of the ancient common law, applicable to cases of homicide, originating in doctrines peculiar to the feudal system; and it has no application to the case at bar, which is brought upon a statute which in itself was a wide departure from the rules of the common law. The street in which the defendant's railroad is operated is 100 feet wide. About 40 feet or more of the center of this street is occupied by an asphalt driveway fringed with parks and lawns. The defendant's double track is therefore placed near the curb on both sides of the street, and one of the tracks was placed so close to a tree that a notch had to be cut into it in order to permit the roof of the car to pass. The tree was about four inches from the side or body of the car. The deceased was traveling in the night, and it was announced in the car that there was a fire in the vicinity. The deceased, in order to see or locate the fire, got up from his seat in the car, and, standing upon the platform, protruded his head about four inches outside of the body of the car, when his head came in collision with the tree. It was this collision that resulted in his subsequent insanity land death, and the sole question is whether the case was one of law for the court or of fact for the jury. There has been much discussion and conflict of opinion with respect to this case in the courts below, and it all centers in this single proposition. But on the argument in this court the learned counsel for the defendant did not rest his case upon that proposition, since he argued and submitted another question, which will now be briefly referred to.
It appears that the car in which the deceased was a passenger was not owned by the defendant, but by another railroad company that had a traffic agreement with the defendant to run its cars over the road under the defendant's rules and regulations, dividing the fares with the defendant. The conductor and motorman on the car in question were employed by the other railroad, but the defendant furnished and controlled the power that operated the cars on the road. On this state of facts it is earnestly contended in behalf of the defendant that the action has been brought against the wrong railroad, and that it should have been prosecuted against the railroad that owned the car and that controlled the servants operating it. I do not think there is anything of substance in this contention. The statute under which this action is brought permits a recovery only against the party whose wrongful act or neglect caused the injury resulting in the passenger's death. The plaintiff could maintain this action against the railroad that owned the road and the track for the plain reason that it was guilty of the wrongful act or neglect resulting in the injury, or at least there was evidence for the jury on that question. If that railroad was properly sued, it is of no consequence that some other road was liable also; either or both may be liable, but it is enough that the defendant is. If the defendant is free from negligence as matter of law, it is difficult to see how the other road could be held, or why it would not have a complete defense, since it could be said that the accident was not due to any neglect of duty or any wrongful act on its part by reason of the location of the track, There is no claim made that the car in which the deceased was riding was in any way defective, nor is there any claim that the accident resulted from any negligence or improper conduct on the part of the motorman or conductor of the car. It was therefore impossible for the plaintiff, under the circumstances, to prove any wrongful act, neglect, or default on the part of the railroad that owned the car. It did not own the railroad, nor control it in any way; it did not build it; it was not responsible for the construction of the track so close to the tree, or for the existence of the tree so close to the car as to be a dangerous obstruction; it had no power to change the track or to remove the tree, or to avert the accident that happened; it was not charged with any duty in that regard. Possibly it might have been made liable for a breach of its contract to carry the passenger safely had the passenger survived. But it could not be held liable under the statute upon which this action is based, since it was not guilty of the wrongful act, neglect, or default which caused the injury. The defendant was the proper party in this action. It owned and built the railroad. It maintained and operated it. All the cars passing over the road were moved by its hand and will, since it furnished and controlled the motive power and enacted the rules and regulations under which they were operated. The compensation paid by the passengers, or some part of it, went into its treasury. It maintained the track within a few inches of the tree, and it permitted the tree to remain so close to the car that it could be found to be a dangerous obstruction. If the decedent had been injured, not by the tree growing close to the track, but as the result of a broken rail, I assume that no one would then contend that the defendant was not liable. This action is based upon an act or omission of the same character, and hence, if there...
To continue reading
Request your trial