Vogel v. State of New York

• Decision Date: 26 September 1953
• Citation: 204 Misc. 614
• Parties: Alecia M. C. Vogel, Claimant,<BR>v.<BR>State of New York, Defendant. (Claim No. 30600.)
• Court: New York Court of Claims

204 Misc. 614

Alecia M. C. Vogel, Claimant,

v.State of New York, Defendant. (Claim No. 30600.)

YOUNG, J.

September 26, 1953.

Carleton G. Eldridge for claimant.

Nathaniel L. Goldstein, Attorney-General (Donald C. Glenn of counsel), for defendant.

YOUNG, J.

The Belleayre Mountain Ski Center is a ski resort owned by the State of New York and operated and maintained by its Conservation Department. Among its facilities is a chair lift, a device for transporting skiers upmountain. During the summer, the lift is used to carry sightseers.

The lift is about 3,000 feet in length, rising in elevation 784 feet, and consists of a series of chairs suspended about 75 feet apart from a continuous cable. An engine at the bottom of the slope supplies motive power to the cable causing the chairs to travel at a speed of about 500 feet per minute. The usual procedure during skiing hours is to have the cable moving continuously with skiers sitting on and alighting from the chairs while they are in motion.

A safety bar, like that on a Ferris wheel seat, extends across the arms of each chair. It opens from the right to the left. Attached to the same shaft as the safety bar, and moving with it, is another horizontal bar called the ski rest.

To use the lift, a skier purchases a group of tickets, surrendering one at the beginning of each ride. He stands in position, holding his ski poles in the right hand, and when the chair reaches him, he sits down and pulls the safety bar closed. This action brings the ski rest into position beneath his skis. The chair, as it leaves the loading station, rises about thirty feet above the ground and it remains at a considerable height until it reaches the unloading platforms, of which there are two, the intermediate station and the summit.

The intermediate station is a platform about seventy feet in length, and, when a chair arrives at this platform, it descends to an elevation of about twenty inches. An attendant is stationed at the downhill edge of the platform to guide each chair from the left while the skier alights to the right. About four feet from the attendant is a cut-off switch, to which a rope is attached. When the rope is pulled, the engine stops and the chairs come to rest within approximately fifteen feet.

Approaching the intermediate station, there are three signs directing passengers:

"APPROACHING INTERMEDIATE STATION GET OFF FOR LESS DIFFICULT TRAILS" "INTERMEDIATE STATION OPEN SAFETY BAR NOW TO GET OFF" "DON'T DRAG SKI POLES"

As the chair reaches the intermediate station, the skier must open the safety gate which in turn swings the ski rest out of position to the left. The skier must then step forward and to the right out of the chair. The chair continues on past the skier and upmountain.

On March 4, 1950, the claimant, a young lady attorney, accompanied by some friends, went to Belleayre to ski. Belleayre's particular attraction for her was the chair lift, because, even though she had skied for three years and was classed as an intermediate skier, she had never been on one.

She purchased some tickets, went to the loading platform of the chair lift, and then proceeded to practice the preachments of every attorney — extreme caution. Instead of immediately embarking on the lift, she stood at the base of the slope and watched its operation for about thirty or forty minutes. She observed how others got on and rode. She quizzed her friends about its operation and was assured by them that it was "simple". Being thus instructed and assured, she took her position in the waiting line to take her first ride. From this point on, everything she did appears to have been wrong.

When it came her turn to ride, claimant, carrying her poles in her left hand, took a seat in the moving chair. A loading attendant shouted that her poles were in the wrong hand. Looking up the slope ahead of her, she could see that the others appeared to have their poles across their laps, with the handles to the right and the points to the left. Following their example, she shifted her poles, continuing the while up the hill toward the intermediate station.

Approaching the intermediate station, she prepared to alight by opening the safety gate and calling out "Intermediate Station, please".

When claimant arrived at the platform, the attendant started to guide her chair from the left and she started to leave it to the right. She then discovered that she had permitted her ski poles to become lodged in the chair in some manner and that she was unable to disengage them. Trying to free the poles, the chair bumping her from the rear, claimant became panicky, her co-ordination deserted her, and she threw herself to the right.

The attendant, seeing and appreciating her plight, pulled the cut-off switch. The chair came to a stop a few feet upmountain from the claimant with the poles still entangled in it. In the meantime, the claimant, having lost her balance, fell to the ground and fractured her leg, for which injury, suit is brought.

The claimant, while conceding proper construction and maintenance of the chair lift, alleges that the accident was caused solely by the failure of the attendant on duty at the intermediate station to properly assist her in alighting from the chair. This allegation is broadened by the claimant's argument that reasonable precaution demanded two attendants, one on either side, to assist those getting off the lift. The suggestion is also made in the testimony that the State failed to properly instruct those inexperienced in riding the lift.

Because of its unfamiliarity with the sport of skiing in general and the operation of ski lifts in particular, the court is appreciative of the lucid manner in which the case was presented at the time of trial and by briefs. The motion pictures of the lift, introduced by the State, were especially helpful to the court in arriving at an understanding of its operation.

The claimant argues that the chair lift is a common carrier within the definition set forth by Anderson v. Fidelity & Cas. Co. (228 N.Y. 475), in that it is a conveyance offered to the public for hire at a fixed fare for all, and that a duty exists to provide a safe place for alighting. (Williams v. Long Is. R. R. Co., 294 N.Y. 318.)

"A common carrier of personal property is one who agrees for a specified compensation to transport such property from one place to another for all persons that may see fit to employ him. (Jackson Architectural Iron Works v. Hurlbut, 158 N.Y. 34; Stevenson & Co. v. Hartman, 231 N.Y. 378, p. 381.) One is not a common carrier unless he indicates to the public that he is ready and willing to do business for all that may see fit to employ him `up to the capacity of his facilities.' (Michigan Commission v. Duke, 266 U. S. 570, p. 577; 2 Parsons on Contracts [9th ed.], 166.)" (Gerhard & Hey, Inc., v. Cattaraugus Tanning Co., 241 N.Y. 413, 417.) Evolution has brought the definition to include the carrying of passengers as well as goods (Anderson v. Fidelity & Cas. Co., 228 N.Y. 475, 492, 493, supra) and the definition has been further delineated over the years when the courts have ruled out various supposed criteria. For example, fixed termini are not essential (Anderson v. Fidelity & Cas. Co., supra); nor are fixed charges (Jackson Architectural Iron Works v. Hurlbut, 158 N.Y. 34); it matters not whether the transportation be vertical or horizontal (Griffen v. Manice. 166 N.Y. 188).

The factor which distinguishes the common carrier from others is that he holds himself out to the public "`in common, that is, to all persons who choose to employ him, as ready to carry for hire'". (Allen v. Sackrider, 37 N.Y. 341, 342.) Even the word "all" has its exceptions. One instance is that a common carrier is not required to carry a passenger who is so intoxicated or otherwise disorderly as to endanger the safety of the other passengers or to cause them annoyance or inconvenience.

(Putnam v. Broadway & Seventh Ave. R. R. Co., 55 N.Y. 108.)

"`It would seem that in every case of general obligation to serve, the custom of service qualifies the nature of the duty.'" (Anderson v. Fidelity & Cas. Co., 228 N.Y. 475, 491, supra, quoting Columbia Law Review, Dec., 1917, pp. 710, 713). This case thus expresses recognition of the fact that every common carrier's obligation to serve all must be qualified by reasonable regulation else its service would be destroyed.

The State of New York, as part of its commendable effort to provide its people with parks and recreational areas, has developed, promoted and advertised its Belleayre Mountain Ski Center. High among its attractive features is the chair lift, which, as we have stated, was the compelling attraction for the claimant, and, we can well imagine, for many others.

The service offered by the chair lift is transportation of passengers for which a fee is charged. It is immaterial to argue that the main concern of the center is downhill skiing and not uphill transportation, as it is not necessary that the exclusive business be carrying. (Jackson Architectural Iron Works v. Hurlbut, 158 N.Y. 34, 37, supra.)

The service is offered to the public "in common", subject, we assume, to the reasonable qualification that, in wintertime, each passenger must be equipped for skiing, although the evidence is silent on that point. From our understanding of the testimony, there are apparently no qualifications in summer, when sightseers are carried on the lift, even children in a parent's arms.

While "Definitions are fundamental", and "Their application to any given state of facts, therefore, must be by analogy" (Anderson v. Fidelity & Cas. Co., 228 N.Y. 475, 481, supra), a factual situation analogous to the one at hand is not readily found. The case appears to be one of first impression both in the country and the State.

In Burke v. State of New York (64 Misc. 558) the transportation concerned was that provided by an inclined railway running from a lower level to an...