Waterbury v. New York Cent. & H.R.R. Co.

• Citation: 17 F. 671
• Parties: WATERBURY v. NEW YORK C. & H.R.R. CO.
• Decision Date: 04 May 1883
• Court: U.S. District Court — Northern District of New York

17 F. 671

WATERBURY v. NEW YORK C. & H.R.R. CO.

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

May 4, 1883

Parker & Countryman, for plaintiff.

Hale &amp Bulkley and Frank Loomis, for defendant.

WALLACE J.

The plaintiff sued for personal injuries sustained, as he alleged, by the negligence of the defendant, and, having recovered a verdict, the defendant moves for a new trial. The plaintiff was riding on an engine of the defendant, when, in consequence of a misplaced switch, it was thrown from the track and he was injured. There was no evidence on the trial of any express contract between the parties creating the relation of passenger and carrier, but it appeared that on various prior occasions the plaintiff and other drovers whose cattle were being transferred from West Albany to East Albany by the defendant, had been permitted by the employes of the defendant to accompany their cattle by the same train,-- sometimes on the cars of the cattle train, and sometimes on the engine. At times the trains were delayed between these points and the cattle required attention, and as no employe of the defendant was assigned to the duty of looking after the cattle, it seemed to be assumed between the employes of the defendant and the drovers that the latter should look after their own cattle. Upon the occasion in question the plaintiff and another drover got upon the engine, there being none but box cars on the train. The engineer inquired if they had cattle on the train, and being informed that such was the fact, made no objection to their riding upon the engine. It was shown for the defendant that its rules for the government of its employes forbade them from permitting any person to ride upon the engine.

At the trial it was left to the jury to determine as questions of fact whether the plaintiff was a trespasser or a passenger whether there was negligence on the part of the defendant and whether there was contributory negligence on the part of the plaintiff. The jury were instructed in substance that if the plaintiff knew he was riding upon the engine in contravention of the rules of the defendant he was a trespasser, and in that case the defendant was not responsible for the injury. They were also instructed that if they found he was riding upon the engine pursuant to an implied understanding between himself and the defendant that he should accompany his cattle in order to take care of them on the way, he was a passenger; and that if he was a passenger, and entitled to accommodations as such, the defendant was not at liberty to assert that he was guilty of negligence in riding upon the engine, if the defendant had provided no safer place for him to ride.

A careful examination of the evidence shows quite satisfactorily that the case did not justify the assumption in any aspect of it that the plaintiff was entitled to be carried as a passenger, as an implied condition of the contract to carry his cattle. The most that can be fairly claimed for the plaintiff upon the evidence is that he was riding upon the engine permissively. If he was riding there with the consent of the defendant, express or implied, it is not material, so far as it affects the defendant's liability for negligence, whether he was there as a matter of right or a matter of favor,-- as a passenger or a mere licensee. It suffices to enable him to maintain an action for negligence if he was being carried by the defendant voluntarily. If the defendant undertook to carry him, although gratuitously, and as a mere matter of favor to himself, it was obligated to exercise due care for his safety in performing the undertaking it had voluntarily assumed. Philadelphia, etc., R. Co. v. Derby, 14 How. 468; Steam-boat New World v. King, 16 How. 469. The carrier does not, by consenting to carry a person gratuitously, relieve himself of responsibility for negligence. When the assent to his riding free has been legally and properly given, the person carried is entitled to the same degree of care as if he paid his fare. Todd v. Old Colony, etc., R. Co. 3 Allen, 18. As is tersely stated by BLACKBURN, J., in Austin v. Great Western Ry. Co. 15 Weekly Rep. 863, 'the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but the fact of his being there creates a duty on the part of the company to carry him safely.'

The real question in the case was lost sight of upon the trial. That question was whether the plaintiff was being carried upon the engine with the consent of the defendant, or only by the unauthorized permission or invitation of the defendant's employes. This question was not presented by the exceptions to the charge or by the instructions which the court was asked to give to the jury. But upon the theory on which the case was presented the jury must have found that the plaintiff had a right to be carried by the defendant as an implied condition of the contract for the transportation of his cattle. As the evidence does not warrant such a conclusion, and as the real question in the case has not been passed upon by the jury, there should be a new trial upon the ground of misdirection, although the defendant's exceptions do not reach the error.

It should have been left to the jury to determine, as a question of fact, whether the defendant had by its conduct held out its employes to the plaintiff as authorized, under the circumstances, to consent to his being carried on the train with his cattle. Undoubtedly the presumption of law is that persons riding upon trains of a railroad carrier, which are palpably not designed for the transportation of persons, are not lawfully there; and if they are permitted to be there by the consent of the carrier's employes, the presumption is against the authority of the employes to bind the carrier by such consent.

In Eaton v. D., L. & W.R. Co. 57 N.Y., 382, it is held that the conductor of a freight train has no authority to consent to the carrying of a person upon a caboose attached to such train, but designed for the accommodation of employes, and in such case the presumption is that the person carried is not lawfully there. On the other hand, this presumption may be overthrown by the special circumstances, as in the case of Ohio & Miss. R. Co. v. Muhling, 30 Ill. 9, where the plaintiff was riding on a construction train, and in the cases of Ryan v. Cumberland Valley R. Co. 23 Pa.St. 384, and Gillshannon v. Stony Brook Co. 10 Cush. 228, where the plaintiff was riding on a gravel train.

So, in a case like the present, where the railroad carrier may derive some benefit from the presence of drovers upon its cattle trains, and may have allowed its employes in charge of such trains to invite or permit drovers to accompany their cattle, the presumption against a license to the person thus carried may be overthrown. It should have been left to the jury to determine, as a question of fact, whether, notwithstanding its rules for the government of its employes, the defendant had not held them out to the plaintiff as having authority to consent to his being carried. If it should appear that its employes have been accustomed to allow drovers to accompany their cattle on the cattle trains so generally and constantly that the officers of the company must have known it, the consent of the company may be predicated upon acquiescence and ratification.

A new trial is granted.

SCOPE OF THIS NOTE. The foregoing opinion touches upon three questions: (1) The duty of carriers of passengers to persons on their vehicles who have not paid their fare; (2) the liability of such carriers to persons on their vehicles who are injured while riding in a dangerous or improper place; and, as growing out of the second question, (3) whether, and, if at all, under what circumstances, the authorization or assent of the carrier's servants that the person injured should ride in a dangerous and improper place, will excuse such person and shift the risk upon the carrier. I shall not undertake to review all the decisions bearing upon these questions; that would go much beyond any limit of space which could be afforded me; but I shall render a more substantial service to the readers of the FEDERAL REPORTER by presenting in detail the decisions-- and they are quite numerous-- which have been rendered on these questions since the publication of any text-book or treatise on the subject of carriers,-- referring to prior decisions so far as may be convenient.

I. Extent of Carrier's Duty to Non-Paying Passengers and Trespassers.

Sec. 1. CARRIER UNDER CERTAIN ABSOLUTE DUTIES TOWARD HIS PASSENGERS. It must be stated, as necessary to the understanding of what follows, that a carrier of passengers for hire assumes certain absolute duties to them in respect of their safety. Without entering into particulars, or attempting to state the various expressions which are used in defining these duties, it may be said that they come substantially to this: that the carrier is bound to provide himself with, and to use the safest means of transportation which are reasonably consistent with the practical conduct of his business; that he is under a continuing duty of inspection and care, to the end that these means of transportation be kept in safe condition with reference to the uses to which they are put; that he is bound to exercise care that the servants whom he employs to conduct his business are careful and competent; and that in all these respects, and in all other respects relating to the safety of his passengers, he must exercise the highest degree of care which is exercised by very cautious persons in the conduct of their business. ^[1]

Sec. 2. CARRIER UNDER THE SAME DUTIES TOWARDS GRATUITOUS PASSENGERS. (1) General Rule. In the prosecution of...