Tinker v. New York, Ontario and Western Railway Co.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: PARKER
• Citation: Tinker v. New Tork, O.&W. Ry. Co., 157 N.Y. 312, 51 N.E. 1031 (N.Y. 1898)
• Decision Date: 22 November 1898
• Parties: MARY A. TINKER, Respondent, v. THE NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, Appellant.

157 N.Y. 312

51 N.E. 1031

TINKER

v.NEW TORK, O. & W. RY. CO.

Court of Appeals of New York.

Nov. 22, 1898.

Appeal from supreme court, general term, Fourth department.

Action by Mary A. Tinker against the New York, Ontario & Western Railway Company for personal injuries. From a judgment for plaintiff, affirmed by the general term (36 N. Y. Supp. 672), defendant appeals. Affirmed.

O'Brien, J., dissenting.

Howard D. Newton, for appellant.

George W. Ray, for respondent.

PARKER, C. J.

This judgment awards to the plaintiff $5,000 for damages which she sustained by being thrown to the ground from her seat in a wagon. The jury have found that the accident was caused by the horses drawing the wagon becoming frightened at two heavy timbers, about 10 feet long and 12 inches square. These timbers were weatherbeaten, and nearly black ‘with oil and stuff on them.’ They were lying in a ditch from 1 to 2 feet in depth, at a distance of about 10 feet from the traveled part of the highway, and about 15 feet from the fence separating the highway from the defendant's land. The jury have found that the horses were roadworthy, and, as the record is not wholly without evidence to support the finding, it cannot be questioned here. While the sticks complained of were situated within the highway limits, although not in the beaten track, the defendant was the owner of such highway, subject only to the rights of the public in and to it for highway purposes; for the land on both sides of the highway at this point belonged to defendant. It insisted upon the trial: First, that it was not responsible for the placing of the sticks upon the highway; and, second, if it was, that the act was one clearly within its rights as owner of the fee of the highway.

As to the first question, it appears that on the 4th day of September, two days before the accident, certain employés of the defendant were engaged in taking out old cattle guards and putting in new ones on defendant's railroad at a point from 30 to 50 feet distant from the place where the sticks were placed. When the sticks were first taken out of the cattle guard, they were moved into the highway far enough to get them out of the way while a new cattle guard was being put in and completed.When the work was finished these sticks were taken across the highway, and then along it for a distance of about 50 feet, and deposited in the ditch. The appellant does not contend that it is not responsible for the acts of its servants while engaged in the master's business within the scope of their employment, and it concedes that inasmuch as its servants were repairing the cattle guards, in the doing of which they were compelled to take out the sticks and place them somewhere, if they or their foreman decided to put them in the ditch the act was one for which their master, this appellant, would be chargeable; but it does insist most strenuously that the evidence conclusively establishes that the two sticks were appropriated to the use of one Volmer, who was an employé of the defendant, and connected with the section gang at work on the cattle guards. The witness Atwell, when asked why the sticks were placed where they were, answered that one of the men, Anthony Volmer, was to have them, and the men carried them over to the ditch for the purpose of assisting him in securing them. This, with other evidence adduced by the defendant upon the subject, shows, the appellant insists, that while the section gang was proceeding in the discharge of the master's work, and before putting the sticks on its own property, outside of the line of the highway, as it did in another instance, one of the servants stepped in and appropriated the sticks as his own; that while it is true he was not the foreman, and could not command, yet he persuaded his fellow laborers to assist him in the appropriation. Thus, appellant urges, it appears that the men, instead of being engaged in the master's business, were taking property away from that master, and aiding another person to appropriate it. Upon this foundation counsel constructs a most interesting argument, leading to the conclusion that the defendant should not be charged with the responsibility of placing the sticks in the ditch. But the difficulty with this contention in this court is that here it must be assumed that the fact is not as the appellant claims. While the record contains the evidence referred to, tending to show that the sticks were placed in the ditch for Volmer's convenience, upon the understanding they were to be used by him for firewood, there were present certain circumstances that persuaded the trial court that the question whether Volmer and his associates did undertake to convert the sticks to Volmer's use was presented for the jury, and so that question was fully and fairly submitted to them. The verdict that followed established, so far as this review is concerned, that the deposit of the sticks in the ditch was not in pursuance of a plan to appropriate them to Volmer's benefit. In our further consideration of the case, therefore, we are to assume that the defendant is responsible for the acts of its employés in placing the sticks in the ditch.

The appellant next insists that, although it be charged with the acts of its employés in depositing the sticks as complained of, yet as it owned the fee, and had the right temporarily to make necessary and reasonable use of the highway in the course of its business, and only exercised such right while engaged in repairing the cattle guards, it can be held responsible for damages resulting from such use only by showing that it was negligent; and the claim is that under the evidence submitted the defendant cannot be charged with negligence. The primary purpose of highways is use by the public for travel and transportation, and the general rule is that any one who interferes with such use commits a nuisance. Indeed, the statute declares it to be a public nuisance, and a crime against the order and economy of the state, to unlawfully interfere with,...